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An administrative services contract is a type of contract that governs how a business will be able to outsource its administrative services. There are many different types of administrative services contracts, and each one has specific benefits and drawbacks.
One variation is an annual contract with a fixed monthly price for all administrative tasks that need to be completed. This type of service will provide a business with assistance in payroll processing, accounting and invoicing, and human resources management. The drawback here is that if a business only requires these services for a short amount of time, it might not be worth signing up for an entire year just to get them done once or twice.
Below is a list of common sections included in Administrative Services Contracts. These sections are linked to the below sample agreement for you to explore.
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of , 2013, by and between each entity listed on Annex I attached hereto (each a “Fund” or collectively the “Funds”), and BNY MELLON INVESTMENT SERVICING (US) INC., a corporation organized under the laws of the State of Massachusetts (“BNYM”).
W I T N E S S E T H :
WHEREAS, each Fund, unless otherwise noted, is registered as a closed-end investment company under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, each Fund desires to retain BNYM to provide the various services described herein and BNYM is willing to provide such services, all as more fully set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties hereby agree as follows:
Whenever used in this Agreement, unless the context otherwise requires, the following words shall have the meanings set forth below:
“Agreement” shall mean this Administrative Services Agreement.
“Authorized Person” shall mean each person, whether or not an officer or employee of a Fund, duly authorized by the Board to give Instructions on behalf of such Fund as set forth in Exhibit A hereto. The persons set forth in Exhibit A may be changed only by a document substantially in the form of Exhibit A actually received and acknowledged by BNYM.
“BNYM Affiliate” shall mean any office, branch, or subsidiary of The Bank of New York Mellon Corporation.
“Board” shall mean a Fund’s board of directors, board of managers, board of trustees or other governing body, as applicable.
“Confidential Information” shall have the meaning given in Section 6(o) of this Agreement.
“Instructions” shall mean written communications actually received by BNYM by S.W.I.F.T., tested telex, letter, email, facsimile transmission, or other method or system specified by BNYM as available for use in connection with the services hereunder, whether from a Shareholder or an Authorized Person of a Fund.
Administrative Services Agreement
“Investment Advisor” shall mean the entity identified by the Funds to BNYM as the entity having investment responsibility with respect to the Funds.
“Net Assets” shall mean total assets less total liabilities, including unrealized profits and losses on open positions, accrued income and expense, calculated in accordance with generally accepted accounting principles as more fully described in the Funds’ Offering Materials.
“Offering Materials” shall mean the Funds’ confidential offering memorandum, subscription documents or similar materials with respect to its offering of the Shares.
“Organizational Documents” shall mean a Fund’s certificate of incorporation, certificate of formation or organization, certificate of limited partnership, bylaws, limited partnership agreement, memorandum of association, limited liability company agreement, or similar documents of formation or organization, as applicable.
“SEC” shall mean the U.S. Securities and Exchange Commission.
“Series” shall mean the various portfolios, if any, of the Fund listed on Schedule II hereto, and if none are listed references to Series shall be references to the Fund.
“Shareholders” shall mean the beneficial owners of Shares of the Fund.
“Shares” shall mean the record and beneficial ownership interests of the Funds offered to Shareholders.
“Sponsor” shall mean the entity identified as such in the Offering Materials.
Each Fund hereby appoints BNYM for the term of this Agreement to perform the services described herein. BNYM hereby accepts such appointment and agrees to perform the duties hereinafter set forth.
Representations and Warranties .
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(a) It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by such Fund in accordance with all requisite action of the Board and constitutes a valid
Administrative Services Agreement
and legally binding obligation of such Fund, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting such enforcement, and except as enforcement is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law);
(c) The Fund’s Investment Advisor is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification, and the Fund and its Investment Advisor are knowledgeable about securities and/or commodities trading, as applicable, and aware of the risk of substantial loss in such trading;
(d) It is conducting its business in compliance in all material respects with all applicable laws and regulations, has made and will continue to make all necessary filings including tax filings, and has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now conducted; there is no statute, regulation, rule, order or judgment binding on it and no provision of its Organizational Documents nor of any mortgage, indenture, credit agreement or other contract binding on it or affecting its property that would prohibit its execution or performance of this Agreement; and
(e) Each person named on Exhibit A hereto is duly authorized by such Fund to be an Authorized Person hereunder.
(f) With respect to the valuation of securities or the computation of net asset value, to the extent the performance of any services described in Schedule I attached hereto by BNYM in accordance with the then effective Prospectus (as hereinafter defined) for the Fund would violate any applicable laws or regulations, the Fund shall immediately so notify BNYM in writing and thereafter shall either furnish BNYM with the appropriate values of securities, net asset value or other computation, as the case may be, or, subject to the prior approval of BNYM, instruct BNYM in writing to value securities and/or compute net asset value or other computations in a manner the Fund specifies in writing, and either the furnishing of such values or the giving of such instructions shall constitute a representation by the Fund that the same is consistent with all applicable laws and regulations and with its Prospectus.
(g) Each Fund shall promptly notify BNYM in writing if any of the foregoing representations and warranties are no longer true in any material respects.
Delivery of Documents .
(a) Each Fund will promptly deliver to BNYM true and correct copies of each of the following documents as currently in effect and will promptly deliver to it all future amendments and supplements thereto, if any:
(i) The Fund’s articles of incorporation or other organizational document and all amendments thereto (the “Charter”);
Administrative Services Agreement
(ii) The Fund’s bylaws (the “Bylaws”);
(iii) Resolutions of the Fund’s Board authorizing the execution, delivery and performance of this Agreement by the Fund;
(iv) The Fund’s registration statement most recently filed with the SEC relating to the Shares of the Fund (the “Registration Statement”);
(v) The Fund’s Notification of Registration under the 1940 Act on Form N-8A filed with the SEC; and
(vi) The Fund’s Prospectus, Statement of Additional Information, or other risk disclosure document pertaining to each Series (collectively, the “Prospectus”).
(b) BNYM hereby represents and warrants to each Fund, which representations and warranties shall be deemed to be continuing, that:
(i) It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
(ii) This Agreement has been duly authorized, executed and delivered by it in accordance with all requisite action and constitutes a valid and legally binding obligation of BNYM, enforceable in accordance with its terms;
(iii) It is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification; and
(iv) It is conducting its business in compliance in all material respects with all applicable laws and regulations and has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now conducted; there is no statute, regulation, rule, order or judgment binding on it and no provision of any contract binding on it or affecting its property would prohibit its execution or performance of this Agreement.
(c) Each copy of the Charter shall be certified by the Secretary of State (or other appropriate official) of the state of organization, and if the Charter is required by law also to be filed with a county or other officer or official body, a certificate of such filing shall be filed with a certified copy submitted to BNYM. Each copy of the Bylaws and copies of Board resolutions, shall be certified by the Secretary or an Assistant Secretary of the appropriate Fund.
Administrative Services Agreement
(d) It shall be the sole responsibility of each Fund to deliver to BNYM its currently effective Prospectus and BNYM shall not be deemed to have notice of any information contained in such Prospectus until it is actually received by BNYM. BNYM shall not be deemed to have notice of any information (other than information supplied by BNYM) contained in such documents or materials until they are actually received by BNYM.
Certain Duties of the Funds .
(a) The Funds shall be solely responsible for accurately and timely supplying BNYM with complete financial and other information relating to the Funds in order for BNYM to provide the services set forth on Schedule I.
(b) Each Fund acknowledges that BNYM is not a public accounting or auditing firm, is not a fiduciary of a public accounting or auditing firm, and does not provide public accounting or auditing services or advice and will not be making any tax filings or doing any tax reporting on its behalf, other than those specifically agreed to hereunder.
(c) Each Fund acknowledges that it may be considered a U.S. withholding agent and/or may be required to file information or other tax returns under the U.S. Internal Revenue Code and related regulations (“IRC and Regulations”). Each Fund agrees that it or its designated agents are, and will continue to be, responsible for compliance with all withholding and reporting required by the IRC and Regulations. Therefore, unless otherwise specified in a written agreement or explicitly included in Schedule I, BNYM and BNYM Affiliates will not be responsible for withholding or depositing taxes, nor will it/they be responsible for any related tax filings or information reporting, including but not limited to Forms 1099, 945, 1042S, 1042, 1065, 1065 K-1, 8804, 8805, 1120 or 1120F.
(d) The Funds, and not BNYM, shall pay all brokerage commissions, margins, option premiums, interest charges, floor commissions and fees, and other transaction costs and expenses charged and incurred by broker-dealers and/or futures commission merchants and their agents.
(e) Each Fund shall use its best efforts to cause its Authorized Persons, Investment Advisor, Sponsor, distributor, internal legal counsel, independent accountant, previous administrator (if any) and transfer agent (if other than BNYM) to cooperate with BNYM and to provide BNYM, upon reasonable request and subject to confidentiality obligations, with such information and documents relating to such Fund as is within the possession of such persons and is reasonably required, in order to enable BNYM to perform its duties hereunder. In connection with its duties hereunder, BNYM shall be entitled to rely, and shall be held harmless by the Funds when acting in good faith in reliance upon, such information or documents provided to BNYM by any of the aforementioned persons for a specified purpose and used by BNYM for such purpose. BNYM shall not be liable for any loss, damage or expense to the extent that such loss, damage or expense results from or arises out of the failure of the Funds to cause any information or documents to be provided to BNYM as provided herein. All fees or costs charged by such persons shall be borne by the Funds.
Administrative Services Agreement
(f) The Funds shall promptly notify BNYM in writing of any and all legal proceedings or securities investigations (other than routine regulatory examinations or audits) filed or commenced against any Fund, the Investment Advisor, the Sponsor or the Board which are material to this Agreement.
Duties and Obligations of BNYM .
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(b) Except to the extent otherwise indicated on Schedule I, BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Funds, distribution of Shares of any Fund, maintenance of any Fund’s financial records or other services normally performed by the Funds’ respective counsel or independent auditors.
(c) Notwithstanding any provision hereof, the services of BNYM are not, nor shall they be construed as constituting, legal advice or the provision of legal services for or on behalf of any Fund or any other person. Neither this Agreement nor the provision of services under this Agreement establishes or is intended to establish an attorney-client relationship between any Fund and BNYM.
(d) Upon receipt of the Funds’ prior written consent (which shall not be unreasonably withheld), BNYM may delegate any of its duties and obligations hereunder to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, the Funds’ consent shall not be required for any such delegation to any BNYM Affiliate notwithstanding the domicile of such BNYM Affiliate, but BNYM shall provide thirty (30) days’ written notice to the Funds prior to any such delegation. BNYM shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any permitted delegee or agent; provided, that BNYM shall have selected such delegee or agent with reasonable care and without bad faith, negligence or willful misconduct; provided, further, that BNYM shall be liable for the acts or omissions of any BNYM Affiliate to the same extent it would be liable under the terms hereof had it committed such act or omission and not delegated the same to such BNYM Affiliate. Notwithstanding the foregoing or anything to the contrary in this Agreement, BNYM may subcontract with, hire, engage or otherwise outsource to any BNYM Affiliate with respect to the performance of any one or more of the functions, services, duties or obligations of BNYM under this Agreement (“Outsourcing”) but any such Outsourcing by BNYM shall not relieve BNYM of any of its obligations hereunder and BNYM shall be liable for the acts or omissions of any BNYM Affiliate to the same extent it would be liable under the terms hereof had it committed such acts or omissions. For the avoidance of doubt, such Outsourcing by BNYM to a BNYM Affiliate shall not be considered a delegation under this Agreement.
Administrative Services Agreement
(e) BNYM shall, as agent for each Fund, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I, and such other books and records as BNYM or the Funds are required to maintain pursuant to Rule 31a-1 of the 1940 Act in connection with the services provided hereunder. Such books and records shall be prepared and maintained as required by the 1940 Act. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds or the Investment Advisor during BNYM’s normal business hours and electronic access to such books, accounts and other documents which are made available by BNYM to the Funds in accordance with Appendix I hereto. To the extent permitted by and in compliance with applicable requirements of any laws, rules and regulations applicable to the Funds, or BNYM, any such books or records may be maintained in the form of electronic media and stored on any magnetic disk or tape or similar recording method. Except as otherwise authorized by the Funds or their agents, all such records shall be preserved by BNYM for a period of at least six (6) years (or longer period of time as may be required by applicable law), unless delivered to a duly appointed successor or to the Funds. In the event a Fund utilizes the BNYM Anti-Money Laundering services described herein, BNYM will maintain records relating to this service as follows: (i) the shorter of (a) at least six (6) years from the date the Shareholder liquidates its investment in the Fund, or (b) such time as the Fund engages a successor administrator in lieu of BNYM with a corresponding transfer of such records by BNYM; or (ii) in the case of a liquidation of the Fund, the shorter of (a) for at least five (5) years from the date a Fund liquidates or (b) until such records are transferred by BNYM to the Funds’ appointed liquidator or another designated Fund agent; provided, however, that such records will be maintained for any period required by applicable law unless transferred as provided in (i)(b) or (ii)(b) above.
(f) All records maintained and preserved by BNYM pursuant to this Agreement shall be and remain the property of the Funds and shall be surrendered to the Funds promptly upon request in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNYM shall provide in hard copy or electronic format any records included in any such delivery which are maintained by BNYM in the form of electronic media and stored on any magnetic disk or tape or similar recording method, and the Funds shall reimburse BNYM for its reasonable expenses incurred in providing such records.
(g) The Funds shall furnish BNYM with any and all Instructions, explanations, information, specifications and documentation reasonably deemed necessary by BNYM in the performance of its duties hereunder, including the amounts or written formula for calculating the amounts and times of accrual of the Funds’ liabilities and expenses. BNYM shall not be required to include as the Funds’ liabilities and expenses, nor as a reduction of Net Assets, any accrual for any income taxes unless the Funds shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce Net Assets. BNYM shall endeavor to determine the value of securities owned by the Funds in the manner described in the Offering Materials. At any time and from time to time, the Funds may, if consistent with and to the extent permitted by the Offering Materials, furnish BNYM with bid, offer, or market values of securities and instruct BNYM to use such information in its calculations
Administrative Services Agreement
hereunder. BNYM shall at no time be required or obligated to commence or maintain either any utilization of, or subscriptions to, any securities pricing or similar service or any arrangements with any brokers, dealers or market makers or specialists described in the Offering Materials.
(h) In the event BNYM’s computations hereunder rely, in whole or in part, upon information, including (i) bid, offer or market values of securities or other assets, or accruals of interest or earnings thereon, from a pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its commercially reasonable judgment deems reliable, or (ii) prices or values supplied by the Fund or by brokers, dealers, market makers, or specialists described in the Offering Materials, BNYM shall not be responsible for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. BNYM shall not be required to inquire into any valuation of securities or other assets by the Funds or any third party described above, even though BNYM in performing services similar to the services provided pursuant to this Agreement for others may receive different valuations of the same or different securities of the same issuers. BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to the Funds is or will be actually paid, but will accrue such interest until otherwise instructed by the Funds.
(i) The method of valuation of securities and the method of computing the Net Assets shall be as set forth in the then currently effective Offering Materials of the Funds. To the extent the description of the valuation methodology of securities or computation of Net Assets as specified in the Funds’ then currently effective Offering Materials is at any time inconsistent with any applicable laws or regulations, the Funds shall immediately so notify BNYM in writing and thereafter shall either furnish BNYM at all appropriate times with the values of such securities and Net Assets, or subject to the prior approval of BNYM, which approval shall not be unreasonably withheld, instruct BNYM in writing as to the appropriate valuation methodology to be employed by BNYM to compute Net Assets in a manner that the Funds then represent in writing to be consistent with all applicable laws and regulations. The Funds may also from time to time, subject to the prior approval of BNYM, which approval shall not be unreasonably withheld, instruct BNYM in writing to compute the value of the securities or Net Assets in a manner other than as specified in this Agreement. By giving such instruction, the Funds shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and the then currently effective Offering Materials.
(j) BNYM, in performing the services required of it under the terms of this Agreement, shall be entitled to rely fully in good faith on the accuracy and validity of any and all Instructions, explanations, information, specifications and documentation furnished to it on behalf of the Funds and, in the absence of bad faith by BNYM, shall have no duty or obligation to review the accuracy, validity or propriety of such Instructions, explanations, information, specifications or documentation, including the amounts or formula for calculating the amounts and times of accrual liabilities and expenses; and the amounts receivable and the amounts payable on the sale or purchase of securities.
Administrative Services Agreement
(k) BNYM may apply to an Authorized Person of the Funds for Instructions with respect to any matter arising in connection with BNYM’s performance hereunder, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith without negligence or willful misconduct in accordance with such Instructions. Such application for Instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken; provided, however, that the time period between such application and the specified date shall provide the Authorized Person with a commercially reasonable time to respond to the application. BNYM shall not be liable for any action taken or omitted to be taken by it in good faith without negligence or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to such date for taking or omitting to take any such action, BNYM has received Instructions from an Authorized Person in response to such application specifying the action to be taken or omitted.
(l) If BNYM is in doubt as to any action it should or should not take, it may request Instructions from the Funds. If it is reasonably in doubt as to any question of law, BNYM may consult with counsel to the Funds or its own counsel, at its own expense. In the event of a conflict between the Instructions received from a Fund and the advice of counsel, BNYM shall be fully protected with respect to anything done or omitted by it in good faith in accordance with the advice or opinion of such counsel. Before relying on advice of counsel that conflicts with Instructions received from a Fund, BNYM shall inform the Fund of such conflict.
(m) BNYM represents to the Funds, as of the date of this Agreement, that it maintains anti-money laundering policies and procedures including those to maintain, assess and test anti-money laundering compliance systems and controls and reporting suspicious activity in compliance with applicable anti-money laundering legislation and regulations, including the U.S. Bank Secrecy Act and the USA PATRIOT Act and regulations issued by the U.S. Treasury Office of Foreign Assets Control, as amended from time to time. BNYM shall provide the “BNYM Anti-Money Laundering Services” described in Schedule I, subject to the terms and conditions of this Agreement and the following additional terms and conditions:
(i) BNYM does not warrant that (x) its performance of the BNYM Anti-Money Laundering Services will achieve any particular intended result, (y) that its performance will fully satisfy any legal obligations of a Fund, or (z) that it will detect all possible instances of money laundering or transactions involving money laundering or other unlawful activities. BNYM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(ii) The Funds or their agent shall provide each subscription agreement to BNYM a reasonable time before formally accepting any initial payment from a Shareholder into an operating account of which a Fund is the beneficial owner,
Administrative Services Agreement
and shall not accept any such payment into such account unless and until BNY shall have completed the BNYM Anti-Money Laundering Services with respect to such Shareholder. BNYM may assume the authenticity and accuracy of any document provided by a Shareholder without verification unless in the sole discretion of BNYM the same on its face appears not to be genuine. In the event of delay or failure by the Shareholder to produce any information required by the subscription agreement or by BNYM in providing the BNYM Anti-Money Laundering Services, BNYM may refuse to accept the subscription and the subscription monies related thereto or may refuse to allow a redemption until proper information has been provided. The Investment Advisor shall instruct BNYM not to accept any payment on behalf of the Funds from a Shareholder or pay on behalf of the Funds any redemption or repurchase proceeds to a Shareholder if the Investment Advisor determines that such acceptance or payment would violate any anti-money laundering laws applicable to the Funds. In the event any initial payment from a Shareholder is sent to an account other than an account of the Funds maintained at a BNYM Affiliate, (A) the Funds shall promptly notify BNYM of the receipt of such payment, (B) the Funds shall not invest such payment until BNYM has completed the BNYM Anti-Money Laundering Services with respect to such Shareholder, and (C) the Funds shall indemnify and hold BNYM harmless in accordance with the terms of this Agreement with respect to any such payment that is invested prior to BNYM’s completion of the BNYM Anti-Money Laundering Services and acceptance of the subscription therefor.
(iii) BNYM shall provide prompt notice to the Funds of any potential Shareholder with respect to whom BNYM has anti-money laundering concerns based on the performance of the BNYM Anti-Money Laundering Services.
(iv) BNYM is providing the BNYM Anti-Money Laundering Services based on the representation and warranty of the Funds, which shall be deemed continued and repeated on each day on which BNYM provides such services, that the Funds have made the independent determination that the BNYM Anti-Money Laundering Services together with the activities of the Funds satisfy all the requirements of the laws with respect to money laundering applicable to the Funds.
(v) Upon request, BNYM shall provide to the Board a written summary of BNYM’s anti-money laundering compliance procedures applicable to its performance of the BNYM Anti-Money Laundering Services. BNYM shall notify the Funds of any material changes to its AML policies, procedures and controls that may affect its performance of the BNYM Anti-Money Laundering Services as soon as reasonably practicable under the circumstances.
(vi) In the event of any failure by BNYM to provide any of the BNYM Anti-Money Laundering Services in accordance with its standard of care and not otherwise, BNYM’s liability shall be limited to the lesser of (x) the actual direct money damages suffered by the affected Fund as a direct result of such failure and (y) the amount paid by the Funds to BNYM under this Agreement during the twelve (12) months immediately preceding the month in which the event giving rise to such liability occurred. Any action brought against BNYM for claims hereunder must be brought within one year following the date on which the affected Fund becomes aware or should have become aware of such failure.
Administrative Services Agreement
(n) BNYM shall have no duties or responsibilities whatsoever including any custodial duties, except such duties and responsibilities as are specifically set forth in this Agreement, including Schedule I or as otherwise required of BNYM by laws or regulations applicable to BNYM, and no covenant or obligation shall be implied against BNYM in connection with this Agreement; provided that the scope of services provided by BNYM under this Agreement shall not be increased as a result of new or revised regulatory or other requirements that may become applicable with respect to the Funds, unless the parties hereto expressly agree in writing to any such increase in the scope of services.
(o) BNYM agrees to treat as confidential information all accounting and Shareholder information and other business records of the Funds, including any information relating to any Fund investment, disclosed or made available to BNYM in connection with its provision of services pursuant to the terms of this Agreement (all such information, the “Confidential Information”) and BNYM shall not disclose the Confidential Information to any other person, except as necessary in connection with its provision of services hereunder to (i) its employees, BNYM Affiliates, delegees, agents and other service providers to the Fund (including, without limitation, information provided by BNYM in connection with an independent third party compliance or other review), (ii) its and the Fund’s respective regulators, examiners, internal and external accountants, auditors, and counsel, or (iii) any other person when required by a court order or legal process, or whenever advised by its counsel that it would be liable for a failure to make such disclosure. To the extent legally permissible, BNYM shall notify a Fund of its intent to supply Confidential Information as the result of a request that related specifically or directly to the Fund. BNYM shall instruct its employees, regulators, examiners, internal and external accountants, auditors, and counsel, and instruct any BNYM Affiliate, delegee or agent to instruct its employees, regulators, examiners, internal and external accountants, auditors, and counsel, who may be afforded access to Confidential Information of such obligations of confidentiality, and shall not use the Confidential Information for any purpose other than the provision of services hereunder. Confidential Information shall not include any information that (i) is or becomes public knowledge through no act or omission of the receiving person, (ii) is publicly disclosed by a Fund or any Shareholder, or (iii) is otherwise obtained from third parties not known by BNYM to be bound by a duty of confidentiality.
(p) The Bank of New York Mellon Corporation is a global financial organization that provides services to clients through its affiliates and subsidiaries in multiple jurisdictions (the “BNY Mellon Group”). The BNY Mellon Group may centralize functions, including audit, accounting, risk, legal, compliance, sales, administration, product communication, relationship management, storage, compilation and analysis of customer-related data, and other functions (the “Centralized Functions”) in one or more affiliates, subsidiaries and third-party service providers. Notwithstanding anything contained elsewhere in this Agreement, solely in connection with the Centralized Functions, (i) each Fund consents to the disclosure of, and authorizes
Administrative Services Agreement
BNYM-AIS to disclose, information regarding the Funds and their accounts (“Fund-Related Data”) to the BNY Mellon Group and to its third-party service providers who are subject to confidentiality obligations with respect to such information and (ii) BNYM may store the names and business addresses of Fund employees on the systems or in the records of the BNY Mellon Group or its service providers. In addition, the BNY Mellon Group may aggregate Fund-Related Data with other data collected and/or calculated by the BNY Mellon Group, and the BNY Mellon Group will own all such aggregated data, provided that the BNY Mellon Group shall not distribute the aggregated data in a format that identifies Fund-Related Data with the Funds. Each Fund is authorized to consent to the foregoing and confirms that the disclosure to and storage by the BNY Mellon Group of such information does not violate any relevant data protection legislation. In addition, BNYM may disclose Fund-Related Data as required by law or at the request of any governmental or regulatory authority.
(q) BNYM will take reasonable precautions, as required by applicable law, to ensure the security of Shareholder records and information, protect against any anticipated threats or hazards to the security or integrity of such records or information, and protect against unauthorized access to or use of such records or information that would result in substantial harm or inconvenience to any Shareholder or Fund (“Incident”) and will maintain reasonable procedures to detect and respond to Incidents or any other internal or external security breaches. BNYM will monitor and review its procedures periodically and revise them, as necessary, to ensure they appropriately address any reasonably foreseeable risks.
(r) BNYM has procedures designed to provide for the security of the Funds records and information, protect against anticipated threats or hazards to the security or integrity of such records or information, and protect against unauthorized access to or use of such records or information as well as detect and respond to internal or external security breaches. BNYM will monitor and review its procedures periodically and revise them, as necessary, to appropriately address reasonably foreseeable risks.
(s) BNYM may utilize systems and/or software designed, and databases provided, by certain third parties, and shall not be liable for any loss, damage or expense that occur as a result of the failure of any such systems, software, and/or databases not caused by BNYM’s own bad faith, negligence or willful misconduct. In providing the services hereunder, BNYM is authorized to utilize any vendor (including pricing and valuation services) reasonably believed by BNYM to be reliable; provided, however, that with respect to pricing and valuation services, BNYM shall provide the Funds prior written notice of the names of such service providers before utilizing any such service with respect to any Fund securities to the extent reasonably practicable under the circumstances. In providing the services hereunder, BNYM is authorized to utilize any vendor (including pricing and valuation services) reasonably believed by BNYM to be reliable. BNYM shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any vendor utilized by BNYM hereunder, provided, that such vendor was selected with reasonable care and without bad faith, negligence or willful misconduct. No such vendor shall be an agent or delegee of BNYM hereunder.
Administrative Services Agreement
(t) BNYM shall make reasonable provisions for emergency use of electronic data processing equipment to the extent appropriate equipment is available and, in the event of equipment failures, BNYM shall, at no additional expense to the Fund, take reasonable steps to minimize service interruption. BNYM shall have no liability with respect to the loss of data or service caused by equipment failure, provided such loss or interruption is not caused by BNYM’s own bad faith, negligence or willful misconduct.
(u) To the best of its knowledge and belief without making further inquiry, BNYM represents and warrants to the Funds that the “Electronic Services Terms and Conditions” attached as Appendix I hereof are the same or substantially similar to those included in administration agreements with BNYM’s other fund clients.
(a) If Schedule I contains a requirement for BNYM to provide a Fund with compliance services (including any Sub-Chapter M Services), such services shall be provided pursuant to the terms of this Section 7 (the “Compliance Services”). The precise compliance review and testing services to be provided shall be as mutually agreed between BNYM and each Fund, and the results of the BNYM’s Compliance Services shall be detailed in a compliance summary report (the “Compliance Summary Report”) prepared on a periodic basis as mutually agreed. Each Compliance Summary Report shall be subject to review and approval by the Funds. BNYM shall have no responsibility or obligation to provide Compliance Services other that those services specifically listed in Schedule I.
(b) Each applicable Fund will examine each Compliance Summary Report delivered to it by BNYM and notify BNYM of any error, omission or discrepancy within ten (10) business days of its receipt. Each Fund agrees to notify BNYM promptly if it fails to receive any such Compliance Summary Report, and further acknowledges that unless it notifies BNYM of any error, omission or discrepancy within ten (10) business days, such Compliance Summary Report shall be deemed to be correct and conclusive in all respects. In addition, if a Fund learns of any out-of-compliance condition before receiving a Compliance Summary Report reflecting such condition, the applicable Fund will notify BNYM of such condition within one business day after discovery thereof.
(c) While BNYM will endeavor to identify out-of-compliance conditions, BNYM does not and could not for the fees charged, make any guarantees, representations or warranties with respect to its ability to identify all such conditions. In the event of any errors or omissions in the performance of Compliance Services, the applicable Fund’s sole and exclusive remedy and BNYM’s sole liability shall be limited to re-performance by BNYM of the Compliance Services affected and in connection therewith the correction of any error or omission, if practicable and the preparation of a corrected report, at no cost to the applicable Fund.
Administrative Services Agreement
Allocation of Expenses .