Common use of Consequential Damages; Limitation of Liability Clause in Contracts

Consequential Damages; Limitation of Liability. (a) In no event and under no circumstances shall any party under this Agreement be liable to another party for consequential or indirect loss of profits, reputation or business or any other special damages under any provision of this Agreement or for any act or failure to act hereunder. For purposes of clarification, fees earned by PFPC and payable by the Funds in accordance with Section 3 and related provisions of this Agreement are not circumstantial or indirect losses and are not barred by this Section 14(a). (b) Notwithstanding anything in this Agreement to the contrary, Transfer Agent’s cumulative liability to the Funds for all losses, claims, suits, controversies, breaches or damages arising out of or related to the provision of Form 8300 Services, Services Provided in Connection with FinCEN Requests Under USA PATRIOT Act Section 314(a), Suspicious Activity Report AML Services, and Legal Process Services described in Sections 19, 20, 21 and 22 of Schedule C of this Agreement (collectively, “SAR/8300 Services”), regardless of the form of action or legal theory, shall not exceed the fees received by PFPC for such services during the twelve (12) months immediately prior to the date of such loss or damage. (c) Notwithstanding anything in this Agreement to the contrary, PFPC shall be liable only for any damages arising out of PFPC’s failure to perform the 22c-2 Services described in Exhibit 5 to Schedule C of this Agreement to the extent such damages arise out of PFPC’s intentional misconduct, bad faith, gross negligence or reckless disregard of such duties. In connection with providing the 22c-2 Services, neither PFPC nor its affiliates shall be liable to the Funds, their shareholders or investors or any agents of the Funds, including its investment advisor(s), for (A) any errors or omissions in any data provided to PFPC by a Financial Intermediary pursuant to a Rule 22c-2 information sharing request, or (B) compliance by the Funds with SEC Rule 22c-2, except to the extent the Funds’ failure to comply is caused by PFPC’s negligence or intentional misconduct. PFPC’s cumulative liability to the Funds for a loss, claim, suit, controversy, breach or damage (collectively, a “Loss”) arising out of or related to the 22c-2 Services and regardless of the form of action or legal theory shall not exceed the lesser of $100,000 or the fees received by PFPC for 22c-2 Services provided hereunder during the twelve (12) months immediately prior to the date of such loss or damage. (d) Nothwithstanding anything in this Agreement to the contrary, the collective liability of PFPC and its affiliates to the Funds for a Loss arising out of or related to the AdvisorCentral Services and regardless of the form of action or legal theory, shall not exceed the fees received by PFPC during the twelve (12) months immediately prior to the date of such Loss. The Funds acknowledge that this limitation has been taken into account in establishing such fees. In jurisdictions not permitting full enforcement of the foregoing, PFPC’s liability shall be limited to the greatest extent permitted by law.

Consequential Damages; Limitation of Liability. (a) In no event and under no circumstances shall any party under this Agreement be liable 8.2.1 Except to another party for consequential or indirect loss of profits, reputation or business or any other special damages under any provision of this Agreement or for any act or failure to act hereunder. For purposes of clarification, fees earned by PFPC and payable extent prohibited by the Funds governing law set forth in accordance with Section 3 and related provisions of this Agreement are not circumstantial or indirect losses and are not barred by this Section 14(a). (b) Notwithstanding 21.4 notwithstanding anything in this Agreement herein to the contrary, Transfer Agent’s cumulative liability to the Funds for all lossesneither Vendor nor Bechtel, claimsnor their subcontractors or suppliers of any tier, suits, controversies, breaches or damages arising out of or related to the provision of Form 8300 Services, Services Provided in Connection with FinCEN Requests Under USA PATRIOT Act Section 314(a), Suspicious Activity Report AML Services, and Legal Process Services described in Sections 19, 20, 21 and 22 of Schedule C of this Agreement (collectively, “SAR/8300 Services”), regardless of the form of action or legal theory, shall not exceed the fees received by PFPC for such services during the twelve (12) months immediately prior to the date of such loss or damage. (c) Notwithstanding anything in this Agreement to the contrary, PFPC shall be liable only for any damages arising out of PFPC’s failure to perform the 22c-2 Services described in Exhibit 5 to Schedule C of this Agreement to the extent such damages arise out of PFPC’s intentional misconduct, bad faith, gross negligence or reckless disregard of such duties. In connection with providing the 22c-2 Services, neither PFPC nor its affiliates shall be liable to the Fundsother for any consequential, their shareholders punitive, * Confidential Treatment Requested exemplary or investors indirect losses or any agents damages, whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to, losses of use, profits, business, reputation or financing. This exclusion of liability for consequential damages shall not apply to (i) third party claims subject to an indemnification obligation hereunder, (ii) the payment of Liquidated Damages, if any, as set forth in Section 8.1 hereof, (iii) to damages resulting from breach of the Funds, including its investment advisor(s), for (A) any errors or omissions in any data provided to PFPC by a Financial Intermediary pursuant to a Rule 22c-2 information sharing requestconfidentiality requirements of this Agreement, or (Biv) compliance the breach of the licensing provisions set forth in Sections 5.2, 5.3 and 5.4 of Article 5. 8.2.2 Except to extent prohibited by the Funds with SEC Rule 22c-2governing law set forth in Section 21.4, except to the extent the Funds’ failure to comply is caused by PFPCVendor’s negligence or intentional misconduct. PFPC’s cumulative total liability to the Funds for a lossBechtel under this Agreement, claimincluding without limitation, suitany Liquidated Damages paid to Bechtel by Vendor under Section 8.1 hereof, controversyhowever caused and under any theory of liability, including negligence, tort, strict liability, breach of contract or damage (collectively, a “Loss”) arising out of or related to the 22c-2 Services and regardless of the form of action or legal theory shall not exceed the lesser of $100,000 or the fees received by PFPC for 22c-2 Services provided hereunder during the twelve (12) months immediately prior to the date of such loss or damage. (d) Nothwithstanding anything in this Agreement to the contrary, the collective liability of PFPC and its affiliates to the Funds for a Loss arising out of or related to the AdvisorCentral Services and regardless of the form of action or legal theoryotherwise, shall not exceed in the fees received by PFPC during the twelve cumulative aggregate (12US) months immediately prior to the date [*]. These limitations shall exclude: (i) any payments made under project-specific insurance policies required under this Agreement; and (ii) third party indemnification obligations of such LossVendor Responsible Parties hereunder. The Funds acknowledge Bechtel hereby disclaims, and waives and releases Vendor from any and all liability in excess of that this limitation has been taken into account in establishing such fees. In jurisdictions not permitting full enforcement of the foregoing, PFPC’s liability shall be limited to the greatest extent permitted by lawprovided herein.