DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement. (b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder. (c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to: (i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement; (ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund; (iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance; (iv) the breach of any representation or warranty of the Fund hereunder; (v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized; (vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund; (vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers; (viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state; (ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading; (x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and (xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund. (d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance. (e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement. (f) The indemnifications contained hereunder shall survive the termination of this Agreement. (g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice. (h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person. (i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries. (j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 4 contracts
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust), Fund Administration and Accounting Services Agreement (Advisers Investment Trust), Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in a commercially reasonable and good faith manner in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any agent of the Fund or third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersinvestors, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any Fund instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member represent investor interests (if any) and are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by independent data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of independent third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, ; provided that each of such third parties was chosen by the Fund. The Fund shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement; provided that the foregoing shall not limit the Fund’s indemnification obligations under this Agreement to the extent such consequential, special or punitive damages are included in any third party claim in connection with which Northern is otherwise entitled to indemnification hereunder.
(d) In order that the Indemnification provisions contained in this Section 6 shall apply, upon the assertion of a claim for which the Fund may be required to indemnify Northern, Northern shall promptly notify the Fund of such assertion, and shall keep the Fund advised with respect to all developments concerning such claim. The Fund shall have the option to participate with Northern in the defense of such claim or to defend against such claim in its own name or in Northern’s name with mutually agreed counsel. Northern shall in no case confess any claim or make any compromise in any case in which the Fund may be required to indemnify Northern except with the Fund’s prior written consent.
(e) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 2 contracts
Samples: Fund Administration and Accounting Services Agreement (Rimrock Funds Trust), Fund Administration and Accounting Services Agreement (Rimrock Funds Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Trust or any Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Trust’s or any Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Trust or a Fund, and which have been prepared or maintained by the Trust or a Fund or any third party on behalf of the Trust or a Fund;
(iii) the Trust’s or any Fund’s refusal or failure to comply with the terms of this Agreement or the Trust’s or any Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the material breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of or agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading; provided, however, that the Trust or any Fund will not indemnify Northern for any such losses, damages, costs, attorneys’ fees and expenses, payments, expenses and liabilities arising out of any untrue statement or omission made in reliance upon and in conformity with information provided by Northern and furnished to the Trust, any Fund or its counsel by Northern in writing for inclusion in such offering documents;
(x) the failure of the Trust or a Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern Northern, the Trust or the a Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, Trust; provided that each of such third parties was chosen by the FundTrust. As used in this Section 6(c), the term “Northern” shall include Northern’s directors, officers, and employees.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Trust, a Fund and its custodian, officers and membersofficers, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust and the Funds for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Trust and each Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out incurred by it or any of its agents that may be asserted against the Trust or attributable to any Fund by any person arising:
(i) From Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it hereinor warranty hereunder; or and
(ii) From Northern’s lack willful misfeasance, bad faith or negligence in the performance of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the its duties specifically set forth in this Agreement, including all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith, or negligence of third parties to whom Northern has assigned any rights and/or delegated any duties under this Agreement, provided that each of such third parties was chosen by Northern, expect to the extent that a loss or expense is directly caused by or resulting from willful misfeasance, bad faith, or negligence on the Trust’s part in the performance of or from reckless disregard by the Trust of the obligations and duties specifically set forth in this Agreement. As used in this Section 6(e), the term “Trust” shall include the Trust’s trustees, officers and employees.
(f) The indemnifications contained hereunder shall survive the termination of this AgreementAgreement and shall be a continuing obligation of each party’s successors and assigns.
(g) Northern mayNo party shall be liable to, at or have a duty to indemnify for, another party for any special, indirect, incidental, consequential or punitive damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement; provided that notwithstanding the expense foregoing, the Trust’s and the Funds’ indemnification obligations shall not be limited to the extent such special, indirect, incidental, consequential or punitive damages of the Fund, any kind are included in any third party claim in connection with matters arising under this Agreement as a result of an instruction, request or information provided by which the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be indemnified party is otherwise entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such adviceindemnification hereunder.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 2 contracts
Samples: Fund Administration and Accounting Services Agreement (GuideStone Funds), Fund Administration and Accounting Services Agreement (GuideStone Funds)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
; (ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
and (xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 2 contracts
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust), Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern Northern, its directors, officers, employees and agents (the “Indemnitees”) harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities that may be imposed on, incurred by Northern, or asserted against any of its agents, the Indemnitees in connection with or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable toof:
(i) any and all actions of Northern or its officers officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers officers, employees or agents of information, records, records or documents which are received by Northern or its officers officers, employees or agents and furnished to them by or on behalf of the Trust or any Fund, and which have been prepared or maintained by the Fund Trust or any Fund, or any third party on behalf of the Trust or any Fund;
(iii) the FundTrust’s refusal or failure to comply with the terms of this Agreement or the FundTrust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the material breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of officers, employees or agents of any instructions reasonably believed to be given by a duly authorized person, or requests person of or the Fund Trust or recognition by Northern of any certificates which representing member interests (if any) which are reasonably believed to bear the signatures of the officers of the Fund Trust and the countersignature of any transfer agent or registrar of the FundTrust;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the a Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement therein of a material fact or omission of a material fact necessary to make any statement therein not misleading; provided, however, that the Trust or any Fund will not indemnify Northern for any such losses, damages, costs, attorneys’ fees and expenses, payments, expenses and liabilities arising out of any untrue statement or omission made in reliance upon and in conformity with information provided by Northern and furnished to the Trust, any Fund or its counsel by Northern in writing for inclusion in such offering documents;
(x) the failure of the Fund Trust to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Trust has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundTrust, provided that each of such third parties was chosen by the FundTrust.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund Trust and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Trust and each Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out incurred by it or any of its agents that may be asserted against the Trust or attributable to any Fund by any person arising:
(i) From Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it hereinor warranty hereunder; or and
(ii) From Northern’s lack willful misfeasance, bad faith or negligence in the performance of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the its duties specifically set forth in this Agreement, including all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith, or negligence of third parties to whom Northern has assigned any rights and/or delegated any duties under this Agreement, provided that each of such third parties was chosen by Northern, expect to the extent that a loss or expense is directly caused by or resulting from willful misfeasance, bad faith, or negligence on the Trust’s part in the performance of or from reckless disregard by the Trust of the obligations and duties specifically set forth in this Agreement. As used in this Section 6(e), the term “Trust” shall include the Trust’s trustees, officers and employees.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the FundTrust, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the FundTrust, obtain the advice and opinion for the professional advisors to the Fund Trust or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the any Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the FundFunds, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the a Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the any Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor or test compliance by the a Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the any Fund or any other person.
(i) In calculating the Net Asset Value of the a Fund, Northern shall not be liable for any loss suffered by the any Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund a Fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the any Fund or its delegates. In circumstances where Northern is directed by the a Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun any Fund or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust No party shall be liable to, or have a duty to indemnify for, another party for any special, indirect, incidental, consequential or punitive damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement; provided that notwithstanding the foregoing, (i) the Trust’s and Northern agree that the Funds’ indemnification obligations of the Fund under this Agreement shall not be binding upon limited to the extent such special, indirect, incidental, consequential or punitive damages of any member kind are included in any third party claim in connection with which the indemnified party is otherwise entitled to indemnification hereunder and (ii) Northern’s indemnification obligations shall not be limited to the extent such special, indirect, incidental, consequential or punitive damages of any kind are included in any third party claim in connection with which the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed indemnified party is otherwise entitled to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereofindemnification hereunder.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Smead Funds Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
; (ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern Chase shall be obligated, as applicable, to exercise the due care and diligence of a professional mutual fund administrator and administrator, mutual fund accountant and mutual fund transfer agent in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern Chase shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s Chase's part in the performance of its duties or from reckless disregard by Northern Chase of the its obligations and duties specifically set forth in under this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections Section 6(a) and 6(b) above, Northern Chase shall not be responsible for, and the Fund MAS shall indemnify and hold Northern Chase harmless from and against, any and all losses, damages, costs, reasonable attorneys’ ' fees and expenses, payments, expenses and liabilities incurred by NorthernChase, any of its agents, or MAS's or the Fund’s 's agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern Chase or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern Chase or its officers or agents of information, records, or documents which are received by Northern Chase or its officers or agents and furnished to them by or on behalf of MAS or the Fund, and which have been prepared or maintained by MAS or the Fund or any third party on behalf of MAS or the Fund;
(iii) MAS's or the Fund’s 's refusal or failure to comply with the terms of this Agreement or MAS's or the Fund’s 's lack of good faith, or its its/their actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund MAS hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with investors and shareholders, or reasonable reliance by Northern Chase on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern Chase or its officers of or agents of any proper instructions reasonably believed to be given by a duly authorized personauthorized, or requests of MAS or the Fund or recognition by Northern Chase of any share certificates which representing member interests (if any) are reasonably believed to bear the proper signatures of the officers of the Fund and the proper countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern Chase by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities shares by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such statestate (1) resulting from activities, actions, or omissions by the Fund or its service providers and agents other than Chase, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Fund prior to the effective date of this Agreement;
(ix) any failure of the Fund’s offering documents 's registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleadingmisleading in a Fund's prospectus;
(x) the failure of MAS or the Fund and its distributor to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; , and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern Chase, MAS or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by MAS or by the FundFund or its distributor, provided that each of such third parties was chosen by MAS or by the FundFund or its distributor.
(d) In performing its services hereunder, Northern Chase shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from MAS, the Fund and its custodiantheir custodians, officers and membersdirectors, investors, agents and other service providers which Northern Chase reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund MAS for any loss or expense caused by such reasonable reliance.
(e) Northern Chase shall indemnify and hold MAS and/or the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ ' fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s Chase's refusal or failure to comply with the material terms of this Agreement; Northern’s Chase's breach of any material representation made by it herein; or Northern’s Chase's lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the its duties specifically set forth in under this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Mutual Funds Sub Administration Agreement (Morgan Stanley Universal Funds Inc)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties duties, obligations and services as are set forth in this Agreement. In the performance of its duties duties, obligations and services hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence and act in good faith in the performance of a professional fund administrator its duties, obligations and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, Agreement and in all events shall act in good faith in performing the services provided for under this AgreementAgreement and Schedules C and D hereto.
(b) Except as otherwise set forth in Section 6(d) hereof, Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the a Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith willful default, willful misconduct, lack of good faith, fraud, negligence or gross negligence on Northern’s part or the part of its agents, delegates or employees, in the performance of or from reckless disregard by Northern or its agents, delegates or employees of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund each Fund, severally but not jointly, shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred (“Losses”), except to the extent such Losses are caused by or resulting from willful misfeasance, willful default, willful misconduct, lack of good faith, fraud, negligence, gross negligence or reckless disregard on Northern, any ’s part or the part of its agents, delegates or the Fund’s agents employees, incurred by Northern in the performance of its/their duties hereunderhereunder on behalf of the Fund, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the The reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf at the request of the Fund, and which have been prepared or maintained by the a Fund or any third party on behalf for use in connection with Northern’s provision of the Fundservices under this Agreement;
(iiiii) the The Fund’s refusal or failure to comply with the terms material provisions of this Agreement Agreement;
(iii) The breach of any material representation or warranty of the Trust on behalf of the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersThe reliance on, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out out, by Northern or its officers of agents of any instructions reasonably believed to be given Proper Instruction by a duly authorized personan Authorized Person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fundeach as defined below;
(viiv) any delaysAny delays of, inaccuraciesinaccuracies or errors in, errors in or omissions from from, information or data provided to Northern by data, corporate action data or pricing services or securities brokers and or dealers;
(viiivi) the offer or sale The failure of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any stateto comply with applicable securities, or in violation of any stop order or tax, commodities and other determination or ruling by any Federal agency or any state agency with respect laws, rules and regulations, except to the offer or sale of extent such shares in such statefailure arises from Northern’s failure to perform its duties and obligations under this Agreement;
(ixvii) any Any failure of the Fund’s offering documents Registration Statement relating to the Fund to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact in such Registration Statement necessary to make any statement the statements therein not materially misleading;
(x) , provided, however, that a Fund’s obligation to indemnify Northern shall not be deemed to cover any such losses, damages, costs, attorneys’ fees and expenses, payments, expenses and liabilities arising out of any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information relating to Northern and furnished to the failure of Trust, the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless or its counsel by Northern in writing for inclusion in the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the FundRegistration Statement.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the each Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to to:
(i) Northern’s refusal or failure to comply with the material terms of this Agreement; ;
(ii) Northern’s breach of any material representation representation, warranty, covenant or certification made by it herein; or Northern’s or
(iii) the willful misfeasance, willful default, willful misconduct, lack of good faith, fraud, negligence or acts involving negligencegross negligence on Northern’s part or the part of its agents, willful misfeasance delegates or employees, in the performance of, or from reckless disregard of by Northern or its agents, delegates or employees of, the duties and obligations specifically set forth in this Agreement.
(e) In no event shall either Northern or the Fund be liable for any special, punitive (except to the extent punitive damages are imposed due to the conduct of Northern) or consequential damages of any kind whatsoever under any provision of this Agreement, even if advised of the possibility thereof.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Del Rey Global Investors Funds)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
; (ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund Company in connection with the matters to which this Agreement relates, except for liability pursuant to Section 6(e) hereunder, and liability for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern Neither party hereunder shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Company shall indemnify out of the applicable Fund’s assets and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, Northern or any of its agentsagents as have been disclosed to Company, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the FundCompany, and which have been prepared or maintained by the Fund Company or any third party on behalf of the FundCompany;
(iii) the FundCompany’s refusal or failure to comply with the terms of this Agreement or the FundCompany’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund Company hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given on behalf of the Company by a duly authorized person, or requests of or the Fund Company or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund Company and the countersignature of any transfer agent or registrar of the FundCompany;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action action, pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund Company in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundCompany’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund Company to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Company has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundCompany, provided that each of such third parties was chosen by the FundCompany.
(d) Further, the Company shall indemnify out of the applicable Fund’s assets and hold harmless Northern and any employee of Northern who has been appointed to serve as an officer of the Company from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern or any such employees acting in a capacity as an officer of the Company, provided such officer acted in good faith and in a manner he/she reasonably believed was in or not opposed to the best interests of the Company.
(e) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund Company and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Company for any loss or expense caused by such reasonable reliance.
(ef) Northern shall indemnify and hold the Fund Company harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(fg) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Harding Loevner Funds Inc)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of AIT — Independent Franchise Partners one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;; AIT — Independent Franchise Partners
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own AIT — Independent Franchise Partners professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are AIT — Independent Franchise Partners binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care reasonable care, skill, prudence and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement (the “Standard of Care”). For purposes of this Agreement, Northern’s failure to satisfy the Standard of Care in connection with the performance of Northern’s duties or obligations hereunder shall be considered “negligence” by Northern.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund Trust in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, fraud, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the FundTrust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement, except to the extent that a loss or expense is directly caused by or resulting from Northern’s willful misfeasance, fraud, bad faith or negligence or reckless disregard by Northern of its obligations and duties specifically set forth in this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the FundTrust, and which have been prepared or maintained by the Fund Trust or any authorized third party on behalf of the FundTrust;
(iii) the FundTrust’s refusal or failure to comply with the terms of this Agreement or the FundTrust’s lack of good faith, or its actions, or lack thereof, involving willful misfeasance, fraud, bad faith, or negligence or willful misfeasancereckless disregard by the Trust of its obligations and duties specifically set forth in this Agreement;
(iv) the material breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the good faith reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund Trust or recognition by Northern of any certificates which representing member represent investor interests (if any) and are reasonably believed to bear the signatures of the officers of the Fund Trust and the countersignature of any transfer agent or registrar of the FundTrust (to the extent a party other than Northern is serving in such capacity for the Trust);
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by independent data, corporate action or pricing services or securities brokers and dealers; provided thatif Northern selected such service provider or securities broker or dealer, Northern shall have exercised reasonable care in selecting the same;
(viii) the offer or sale of securities by the Fund Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading; provided that such failure was not the result of the Trust’s reasonable reliance on information furnished to the Trust by Northern;
(x) the failure of the Fund Trust to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless , except to the Fund had reasonable reliance on information provided extent that such failure is directly caused by or results from Northern’s willful misfeasance, fraud, bad faith or negligence or reckless disregard by Northern of its obligations and duties specifically set forth in this Agreement; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Trust has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, Trust; provided that each of such third parties was chosen by the FundTrust. If any loss, damage, cost, tax, attorneys’ fee or expense, payment, expense or liability incurred by Northern and for which indemnification is available to Northern hereunder arises or results from any action or inaction with respect to or on behalf of less than all the Funds, only the Funds with respect to which such action or inaction was taken shall be responsible for such loss, damage, cost, tax, attorneys’ fee or expense, payment, expense or liability.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund Trust and its custodiancustodian (if a party other than Northern is serving in such capacity), officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the each Fund harmless from and against against, any and all losses, damages, costs, chargestaxes, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by the Fund that directly arising arise out of or are directly attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good willful misfeasance, fraud, bad faith, or acts involving negligence, willful misfeasance negligence or reckless disregard of its duties hereunder, except to the extent that a loss or expense is directly caused by or resulting from the Trust’s or a Fund’s willful misfeasance, fraud, bad faith or negligence or reckless disregard by the Trust or a Fund of their obligations and duties specifically set forth in this Agreement.
(f) In connection with any indemnification provided pursuant to this Agreement, the indemnified party may make claims for indemnification by giving written notice to the indemnifying party, but the failure to do so shall not relieve the indemnifying party from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall summarize the bases for the claim for indemnification and any claim or liability being asserted by a third party. The indemnifying party shall be entitled to direct the defense against a third-party claim or liability with counsel selected by it (subject to the consent of the indemnified party, which consent shall not be unreasonably withheld) as long as the indemnifying party is conducting a good faith and diligent defense. The indemnified party shall at all times have the right to fully participate in the defense of a third-party claim or liability at its own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the indemnifying party and the indemnified party, and the indemnified party is advised that representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the indemnified party may engage separate counsel at the expense of the indemnifying party. If no such notice of intent to dispute and defend a third-party claim or liability is given by the indemnifying party, or if such good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have the right, at the expense of the indemnifying party, to undertake the defense of such claim or liability (with counsel selected by the indemnified party), and to compromise or settle it, exercising reasonable business judgment. If the third-party claim or liability is one that by its nature cannot be defended solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may reasonably request and shall cooperate with the indemnifying party in such defense, at the expense of the indemnifying party. The indemnifying party shall have the right to settle any third-party claim or liability without the consent of the indemnified party provided that such settlement (i) fully releases the indemnified party from any liability and provides no admission of wrongdoing, and (ii) does not subject the indemnified party to any additional obligation, whether financial or otherwise. In the event that any such settlement does not meet the requirements of (i) and (ii) above, then the indemnified party must consent to such settlement in writing, which consent shall not be unreasonably withheld, conditioned or delayed. The indemnified party shall use reasonable efforts to mitigate any loss for which the indemnifying party may be liable under its indemnification.
(g) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Driehaus Mutual Funds)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern Northern, its directors, officers, employees and agents (the “Indemnitees”) harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities that may be imposed on, incurred by Northern, or asserted against any of its agents, the Indemnitees in connection with or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable toof:
(i) Northern’s performance of the services in accordance with the terms of this Agreement and any and all actions of Northern or its officers officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers officers, employees or agents of information, records, records or documents which are received by Northern or its officers officers, employees or agents and furnished to them by or on behalf of the Trust or any Fund, and which have been prepared or maintained by the Fund Trust or any Fund, or any third party on behalf of the Trust or any Fund;
(iii) the FundTrust’s refusal or failure to comply with the terms of this Agreement or the FundTrust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of officers, employees or agents of any instructions reasonably believed to be given by a duly authorized person, or requests person of or the Fund Trust or recognition by Northern of any certificates which representing member interests (if any) which are reasonably believed to bear the signatures of the officers of the Fund Trust and the countersignature of any transfer agent or registrar of the FundTrust;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the a Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement therein of a material fact or omission of a material fact necessary to make any statement therein not misleading; except with respect to any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleadingmisleading provided to the Trust by Northern in writing for inclusion in the Trust’s offering documents;
(x) the failure of the Fund Trust to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Trust has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundTrust, provided that each of such third parties was chosen by the FundTrust.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund Trust and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(gf) Northern may, at the expense of the FundTrust, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the FundTrust, obtain the advice and opinion for the professional advisors to the Fund Trust or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the any Fund as a result of any act taken by Northern in reliance upon such advice.
(hg) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the FundFunds, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the a Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the any Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor or test compliance by the a Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the any Fund or any other person.
(ih) In Without prejudice to Section 6(c)(ii), in calculating the Net Asset Value of the a Fund, Northern shall not be liable for any loss suffered by the any Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed Northern, subject to be negligentSection 6(b) above, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund a Fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the any Fund or its delegates. In circumstances where Northern is directed by the a Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun any Fund or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Boston Trust Walden Funds)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern Northern, its directors, officers, employees and agents (the “Indemnitees”) harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities that may be imposed on, incurred by Northern, or asserted against any of its agents, the Indemnitees in connection with or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable toof:
(i) Northern’s performance of the services in accordance with the terms of this Agreement and any and all actions of Northern or its officers officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Northern or its officers officers, employees or agents of information, records, records or documents which are received by Northern or its officers officers, employees or agents and furnished to them by or on behalf of the Trust or any Fund, and which have been prepared or maintained by the Fund Trust or any Fund, or any third party on behalf of the Trust or any Fund;
(iii) the FundTrust’s refusal or failure to comply with the terms of this Agreement or the FundTrust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reasonable reliance on or the carrying out by Northern or its officers of officers, employees or agents of any instructions reasonably believed to be given by a duly authorized person, or requests person of or the Fund Trust or recognition by Northern of any certificates representing shareholder interests which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund Trust and the countersignature of any transfer agent or registrar of the FundTrust;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the a Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement therein of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund Trust to comply with applicable securities, tax, commodities and other laws, rules and regulations; , unless such failure was the Fund had result of the Trust’s reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Trust has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundTrust, provided that each of such third parties was chosen by the FundTrust.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund Trust and its custodian, officers and memberstrustees, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund Trust harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the FundTrust, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the FundTrust, obtain the advice and opinion for the professional advisors to the Fund Trust or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the any Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the FundFunds, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the a Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the any Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor or test compliance by the a Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the any Fund or any other person.
(i) In calculating the Net Asset Value of the a Fund, Northern shall not be liable for any loss suffered by the any Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund a Fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the any Fund or its delegates. In circumstances where Northern is directed by the a Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun any Fund or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Datum One Series Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
. (g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Northern performing its duties hereunder in accordance with the standards set forth in Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund including, without limitation, information, records, or documents from any prior provider of fund administration and/or fund accounting services to the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or by the Fund or recognition by Northern of any certificates which representing member shareholder interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Asset Management Fund)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s 's part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ ' fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ ' fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s 's agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s 's refusal or failure to comply with the terms of this Agreement or the Fund’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s 's offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ ' fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s 's refusal or failure to comply with the material terms of this Agreement; Northern’s 's breach of any material representation made by it herein; or Northern’s 's lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) In connection with the performance of its duties under this Agreement, Northern may, at shall cooperate with all reasonable requests of the expense Fund and its representatives related to the administration and monitoring of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors 's compliance program pursuant to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such adviceRule 38a-1.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Clearwater Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern Neither party shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement; provided that notwithstanding the foregoing, Northern’s aggregate liability under this Agreement for any eighteen-month period the Trust and the Funds’ indemnification obligations shall not exceed be limited to the equivalent extent such special, indirect, incidental, consequential or punitive damages of one year’s fees paid by any kind are included in any third party claim in connection with which the Fund in the preceding twelve-month period for the Services indemnified party is otherwise entitled to indemnification hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, shareholders or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member shareholder interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, ; provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and membersshareholders, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund Fund, its directors, officers, employees and agents harmless from and against against, any and all losses, damages, costs, charges, reasonable attorneys’ counsel fees and expenses(including the defense of any lawsuit in which the Trust or affiliate is a named party), payments, expenses and liabilities liability directly arising out of or attributable to any action taken or omitted to be taken by Northern as a result of Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good bad faith, or acts involving negligence, willful misfeasance misconduct in the performance of its duties under this Agreement or reckless disregard of its duties hereunder, except to the extent that a loss or expense is directly caused by or resulting from the Fund’s negligence, willful misconduct, bad faith or reckless disregard by the Fund of its obligations and duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Brandes Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund Funds in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern harmless from and against, any and all reasonable and documented losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s Funds’ agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the FundFunds, and which have been prepared or maintained by the Fund Funds or any third party on behalf of the FundFunds;
(iii) the Fund’s Funds’ refusal or failure to comply with the terms of this Agreement or the Fund’s Funds’ lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund Funds hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund Funds or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund Funds and the countersignature of any transfer agent or registrar of the FundFunds;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund Funds in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s Funds’ offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund Funds to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Funds has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundFunds, provided that each of such third parties was chosen by the FundFunds.
(d) Further, the Trust and the Funds shall indemnify out of the Funds assets and hold harmless Northern and any employee of Northern who has been appointed to serve as an officer of the Funds from and against any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern or any such employees acting in a capacity as an officer of the Trust, provided such officer acted in good faith and in a manner he/she reasonably believed was in or not opposed to the best interests of the Trust.
(e) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund Funds and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Funds for any loss or expense caused by such reasonable reliance.
(ef) Northern shall indemnify and hold the Fund Trust and the Funds harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(fg) The indemnifications contained hereunder shall survive the termination of this Agreement.
(gh) Northern may, at the expense of the Fund, in In connection with matters arising the performance of its duties under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) aboveAgreement, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management cooperate with all reasonable requests of the investments or any other assets Funds and its representatives related to the administration and monitoring of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence Funds’s compliance program pursuant to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other personRule 38a-1.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Clearwater Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all NTAC:2SE-18 losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;; NTAC:2SE-18
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.. NTAC:2SE-18
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have NTAC:2SE-18 been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Advisers Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, provided that each of such third parties was chosen by the Fund.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Williams Capital Management Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Trust or any Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasancemisconduct, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the any Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Trust or a Fund, and which have been prepared or maintained by the Trust or a Fund or any third party on behalf of the Trust or a Fund;
(iii) the Trust or any Fund’s refusal or failure to comply with the terms of this Agreement or the Trust or any Fund’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasancemisconduct;
(iv) the material breach of any representation or warranty of the Trust or any Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of or agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or by the Trust or a Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Trust or a Fund and the countersignature of any transfer agent or registrar of the a Fund;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the a Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the a Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Trust or a Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasancemisconduct, bad faith or negligence of third parties to whom Northern Northern, the Trust or the a Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust a Fund, ; provided that each of such third parties was chosen by the Trust or such Fund. As used in this Section 6(c), the term “Northern” shall include Northern’s directors, officers and employees.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Trust, a Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust and the Funds for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund Adviser and the Trust harmless from and against against, any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out incurred by them or any of their agents that may be asserted against the Adviser or attributable to the Trust by any person arising:
(i) from Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it hereinor warranty hereunder; or and
(ii) from Northern’s lack of good bad faith, or acts involving negligence, or willful misfeasance or reckless disregard misconduct in the performance of the its duties specifically set forth in this Agreement, including all actions, inactions, omissions, or errors caused by or resulting from the willful misconduct, bad faith or negligence of third parties to whom Northern has assigned any rights and/or delegated any duties under this Agreement, provided that each of such third parties was chosen by Northern, except to the extent that a loss or expense is directly caused by or resulting from willful misconduct, bad faith or negligence on the Trust’s or Adviser’s part in the performance of or from reckless disregard by the Trust or Adviser of the obligations and duties specifically set forth in this Agreement. As used in this Section 6(e), the term “Trust” shall include the Trust’s trustees, officers and employees and the term “Adviser” shall include the Adviser’s directors, officers and employees.
(f) The indemnifications contained hereunder shall survive the termination of this AgreementAgreement and shall be a continuing obligation of each party’s successors and assigns.
(g) Northern mayNo party shall be liable to, at or have a duty to indemnify for, another party for any special, indirect, incidental, consequential or punitive damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement; provided that notwithstanding the expense foregoing, the Trust and the Funds’ indemnification obligations shall not be limited to the extent such special, indirect, incidental, consequential or punitive damages of the Fund, any kind are included in any third party claim in connection with matters arising under this Agreement as a result of an instruction, request or information provided by which the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be indemnified party is otherwise entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such adviceindemnification hereunder.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Ariel Investment Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or gross negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern Northern, its directors, officers, employees and agents (the “Indemnitees”) harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities that may be imposed on, incurred by Northern, or asserted against any of its agents, the Indemnitees in connection with or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable toof:
(i) Northern’s performance of the services in accordance with the terms of this Agreement and any and all actions of Northern or its officers officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers officers, employees or agents of information, records, records or documents which are received by Northern or its officers officers, employees or agents and furnished to them by or on behalf of the Trust or any Fund, and which have been prepared or maintained by the Fund Trust or any Fund, or any third party on behalf of the Trust or any Fund;
(iii) the FundTrust’s refusal or failure to comply with the terms of this Agreement or the FundTrust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of officers, employees or agents of any instructions reasonably believed to be given by a duly authorized person, or requests person of or the Fund Trust or recognition by Northern of any certificates which representing member interests (if any) which are reasonably believed to bear the signatures of the officers of the Fund Trust and the countersignature of any transfer agent or registrar of the FundTrust;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the a Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement therein of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund Trust to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Trust has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundTrust, provided that each of such third parties was chosen by the FundTrust.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund Trust and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund Trust for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(gf) Northern may, at the expense of the FundTrust, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the FundTrust, obtain the advice and opinion for the professional advisors to the Fund Trust or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the any Fund as a result of any act taken by Northern in reliance upon such advice.
(hg) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the FundFunds, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the a Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the any Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor or test compliance by the a Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the any Fund or any other person.
(ih) In calculating the Net Asset Value of the a Fund, Northern shall not be liable for any loss suffered by the any Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund a Fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the any Fund or its delegates. In circumstances where Northern is directed by the a Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun any Fund or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (JOHCM Funds Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care reasonable care, skill, prudence and diligence that may reasonably be expected of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement (the “Standard of Care”). For all purposes of this Agreement, Northern’s failure to satisfy the Standard of Care in connection with the performance of Northern’s duties or obligations hereunder shall be considered “negligence” by Northern.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misconduct, willful misfeasance, fraud, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, taxes, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement, except to the extent that a loss or expense is directly caused by or resulting from Northern’s willful misconduct, willful misfeasance, fraud, bad faith, negligence or reckless disregard by Northern of its obligations and duties specifically set forth in this Agreement;
(ii) the good faith reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving willful misconduct, willful misfeasance, fraud, bad faith, negligence or willful misfeasancereckless disregard by the Fund of its obligations and duties specifically set forth in this Agreement;
(iv) the material breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the good faith reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Fund or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless , except to the Fund had reasonable reliance on information provided extent that such failure to comply is directly caused by or results from Northern’s willful misconduct, willful misfeasance, fraud, bad faith, negligence or reckless disregard by Northern of its obligations and duties specifically set forth in this Agreement; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasancemisconduct, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, ; provided that each of such third parties was chosen by the Fund; provided that if any loss, damage, cost, tax, attorneys’ fee or expense, payment, expense or liability incurred by Northern and for which indemnification is available to Northern hereunder arises or results from any action or inaction taken with respect to or on behalf of less than all the Portfolios of the Fund, only the Portfolios with respect to which such action or inaction was taken shall be responsible for such loss, damage, cost, tax, attorneys’ fee or expense, payment, expense or liability.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund each Portfolio harmless from and against against, any and all losses, damages, costs, chargestaxes, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by the Portfolio that directly arising arise out of or are directly attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good willful misconduct, willful misfeasance, fraud, bad faith, or acts involving negligence, willful misfeasance negligence or reckless disregard of its duties hereunder, except to the extent that a loss or expense is directly caused by or resulting from the Trust’s or a Portfolio’s willful misconduct, willful misfeasance, fraud, bad faith, negligence or reckless disregard by the Trust or a Portfolio of their obligations and duties specifically set forth in this Agreement.
(f) In connection with any indemnification provided pursuant to this Agreement, the indemnified party may make claims for indemnification by giving written notice thereof to the indemnifying party, but the failure to do so shall not relieve the indemnifying party from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall summarize the bases for the claim for indemnification and any claim or liability being asserted by a third party. The indemnifying party shall be entitled to direct the defense against a third-party claim or liability with counsel selected by it (subject to the consent of the indemnified party, which consent shall not be unreasonably withheld) as long as the indemnifying party is conducting a good faith and diligent defense. The indemnified party shall at all times have the right to fully participate in the defense of a third-party claim or liability at its own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the indemnifying party and the indemnified party, and the indemnified party is advised that representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the indemnified party may engage separate counsel at the expense of the indemnifying party. If no such notice of intent to dispute and defend a third-party claim or liability is given by the indemnifying party, or if such good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have the right, at the expense of the indemnifying party, to undertake the defense of such claim or liability (with counsel selected by the indemnified party), and to compromise or settle it, exercising reasonable business judgment. If the third-party claim or liability is one that by its nature cannot be defended solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may reasonably request and shall cooperate with the indemnifying party in such defense, at the expense of the indemnifying party. The indemnifying party shall have the right to settle any third-party claim or liability without the consent of the indemnified party provided that such settlement (i) fully releases the indemnified party from any liability and provides no admission of wrongdoing, and (ii) does not subject the indemnified party to any additional obligation, whether financial or otherwise. In the event that any such settlement does not meet the requirements of (i) and (ii) above, then the indemnified party must consent to such settlement in writing, which consent shall not be unreasonably withheld, conditioned or delayed. The indemnified party shall use reasonable efforts to mitigate any loss for which the indemnifying party may be liable under its indemnification.
(g) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value Upon reasonable request of the Fund, Northern shall not be liable for any loss suffered by provide the Fund by reason with a copy of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund Northern’s Service Organizational Control (SOC) 1 reports (or any connected person thereof successor reports) (including a connected person which is “SOC Report”) prepared in accordance with the requirements of AT section 801, Reporting on Controls at a broker, market maker Service Organization (formerly Statement on Standards for Attestation Engagements (SSAE) No. 16) as well as “gap” or other intermediary) or its delegates. However“bridge” letters covering interim periods and confirming the findings of the most recent SOC Report provided, in certain circumstances it may not be possible or practicable for such forms and upon such occurrences as Northern provides to verify such information its fund administration and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediariesaccounting clients generally.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Morningstar Funds Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible hereunder for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator administrator, and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasancemisconduct, bad faith faith, or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this AgreementAgreement (collectively, “Disabling Conduct”). Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund Trust and the Funds shall indemnify and hold Northern Northern, its directors, officers, employees or agents (the “Indemnitees”) harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities that may be imposed on, incurred by Northern, or asserted against any of its agents, the Indemnitees in connection with or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable toof:
(i) Northern’s performance of the services in accordance with the terms of this Agreement and any and all actions of Northern or its officers officers, employees or agents required to be taken pursuant to this Agreement, except to the extent that a loss or expense is directly caused by or resulting from Northern’s Disabling Conduct;
(ii) the reliance on or use by Northern or its officers officers, employees or agents of information, records, records or documents which are received by Northern or its officers officers, employees or agents and furnished to them by or on behalf of the Trust or any Fund, and which have been prepared or maintained by the Fund Trust or any Fund, or any third party on behalf of the Trust or any Fund;
(iii) the FundTrust’s refusal or failure to comply with the terms of this Agreement or the FundTrust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholders, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of officers, employees or agents of any Authorized Instructions, notices or other communications, including electronic transmissions, from the Trust and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, including, without limitation, any instructions reasonably believed to be given by a duly authorized person, or requests person of or the Fund Trust or recognition by Northern of any certificates which representing member interests (if any) which are reasonably believed to bear the signatures of the officers of the Fund Trust and the countersignature of any transfer agent or registrar of the FundTrust;
(viivi) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers; provided that if Northern selected such service provider or securities broker or dealer, Northern shall have exercised reasonable care in selecting the same;
(viiivii) the offer or sale of securities by the a Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ixviii) any failure of the FundTrust’s offering documents to comply with applicable laws, or any untrue statement therein of a material fact or omission of a material fact necessary to make any statement therein not misleading, except for any such statement or omission based on and accurately reflecting information supplied by Northern for inclusion in the Trust’s offering documents;
(xix) the failure of the Fund Trust to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless , except to the Fund had reasonable reliance on information provided extent that such failure to comply is directly caused by or resulting from Northern’s Disabling Conduct; and
(xix) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Fund Trust has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the FundTrust, provided that each of such third parties was chosen by the FundTrust.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon any Authorized Instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund Trust, the Funds, and their directors, officers and employees harmless from and against against, any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities that may be imposed on, incurred by or asserted against the Trust or any Fund directly arising out caused by or resulting from any action or failure or omission to act by Northern or the Indemnitees, as a result of or attributable to Northern’s refusal Disabling Conduct, except to the extent that a loss or failure to comply with expense is directly caused by or resulting from the material terms of this Agreement; NorthernTrust’s breach of any material representation made by it herein; or Northerna Fund’s lack of good willful misconduct, bad faith, or acts involving negligence, willful misfeasance negligence or reckless disregard by the Trust or a Fund of the their obligations and duties specifically set forth in this Agreement.
(fe) The indemnifications contained hereunder shall survive the termination of this Agreement.
(gf) Northern may, at the expense of the FundTrust, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the FundTrust, obtain the advice and opinion for the professional advisors to the Fund Trust or its own professional advisors and Northern shall be entitled to reasonably rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the any Fund as a result of any act taken by Northern in reasonable reliance upon such advice.
(hg) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to timeFunds. Consequently, Northern is not, nor shall be, liable to the a Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the any Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor or test compliance by the a Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the any Fund or any other person.
(ih) In calculating the Net Asset Value net asset value of the a Fund, Northern shall not be liable for any loss suffered by the any Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing serviceservice retained by Northern as approved by the Trust. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund a Fund or any other person by reason of any error in the calculation of the Net Asset Value net asset value of a Fund resulting from any inaccuracy in the information provided by the any Fund or its delegatesdelegates in the absence of Disabling Conduct on the part of Northern. In circumstances where Northern is directed by the a Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun any Fund or any other person by reason of error in the calculation of Net Asset Value the net asset value of a Fund resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (JOHCM Funds Trust)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care reasonable care, skill, prudence and diligence that may reasonably be expected of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement (the “Standard of Care”). For purposes of this Agreement, Northern’s failure to satisfy the Standard of Care in connection with the performance of Northern’s duties or obligations hereunder shall be considered “negligence” by Northern.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misconduct, willful misfeasance, fraud, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Fund shall indemnify and hold Northern harmless from and against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Fund’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement, except to the extent that a loss or expense is directly caused by or resulting from Northern’s willful misconduct, willful misfeasance, fraud, bad faith, or negligence or reckless disregard by Northern of its obligations and duties specifically set forth in this Agreement;
(ii) the good faith reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund’s refusal or failure to comply with the terms of this Agreement or the Fund’s lack of good faith, or its actions, or lack thereof, involving willful misconduct, willful misfeasance, fraud, bad faith, or negligence or willful misfeasancereckless disregard by the Fund of its obligations and duties specifically set forth in this Agreement;
(iv) the material breach of any representation or warranty of the Fund hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with shareholdersmembers, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the good faith reliance on or the carrying out by Northern or its officers of or agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or by the Fund or recognition by Northern of any certificates which representing member represent investor interests (if any) and are reasonably believed to bear the signatures of the officers of the Fund and the countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, incompleteness of, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Fund’s offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Fund to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless , except to the Fund had reasonable reliance on information provided extent that such failure to comply is directly caused by or results from Northern’s willful misconduct, willful misfeasance, fraud, bad faith, or negligence or reckless disregard by Northern of its obligations and duties specifically set forth in this Agreement; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasancemisconduct, bad faith or negligence of third parties to whom Northern or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Fund, ; provided that each of such third parties was chosen by the Fund. If any loss, damage, cost, tax, attorneys’ fee or expense, payment, expense or liability incurred by Northern and for which indemnification is available to Northern hereunder arises or results from any action or inaction taken with respect to or on behalf of less than all the Portfolios of the Fund, only the Portfolios with respect to which such action or inaction was taken shall be responsible for such loss, damage, cost, tax, attorneys’ fee or expense, payment, expense or liability.
(d) In performing its services hereunder, Northern shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from the Fund and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund for any loss or expense caused by such reasonable reliance.
(e) Northern shall indemnify and hold the Fund each Portfolio harmless from and against against, any and all losses, damages, costs, chargestaxes, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by the Portfolio that directly arising arise out of or are directly attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good willful misconduct, willful misfeasance, fraud, bad faith, or acts involving negligence, willful misfeasance negligence or reckless disregard of its duties hereunder, except to the extent that a loss or expense is directly caused by or resulting from the Fund’s or a Portfolio’s willful misconduct, willful misfeasance, fraud, bad faith, or negligence or reckless disregard by the Fund or a Portfolio of their obligations and duties specifically set forth in this Agreement.
(f) In connection with any indemnification provided pursuant to this Agreement, the indemnified party may make claims for indemnification by giving written notice thereof to the indemnifying party, but the failure to do so shall not relieve the indemnifying party from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall summarize the bases for the claim for indemnification and any claim or liability being asserted by a third party. The indemnifying party shall be entitled to direct the defense against a third-party claim or liability with counsel selected by it (subject to the consent of the indemnified party, which consent shall not be unreasonably withheld) as long as the indemnifying party is conducting a good faith and diligent defense. The indemnified party shall at all times have the right to fully participate in the defense of a third-party claim or liability at its own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the indemnifying party and the indemnified party, and the indemnified party is advised that representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the indemnified party may engage separate counsel at the expense of the indemnifying party. If no such notice of intent to dispute and defend a third-party claim or liability is given by the indemnifying party, or if such good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have the right, at the expense of the indemnifying party, to undertake the defense of such claim or liability (with counsel selected by the indemnified party), and to compromise or settle it, exercising reasonable business judgment. If the third-party claim or liability is one that by its nature cannot be defended solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may reasonably request and shall cooperate with the indemnifying party in such defense, at the expense of the indemnifying party. The indemnifying party shall have the right to settle any third-party claim or liability without the consent of the indemnified party provided that such settlement (i) fully releases the indemnified party from any liability and provides no admission of wrongdoing, and (ii) does not subject the indemnified party to any additional obligation, whether financial or otherwise. In the event that any such settlement does not meet the requirements of (i) and (ii) above, then the indemnified party must consent to such settlement in writing, which consent shall not be unreasonably withheld, conditioned or delayed. The indemnified party shall use reasonable efforts to mitigate any loss for which the indemnifying party may be liable under its indemnification.
(g) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value Upon reasonable request of the Fund, Northern shall not be liable for any loss suffered by provide the Fund by reason with a copy of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund Northern’s Service Organizational Control (SOC) 1 reports (or any connected person thereof successor reports) (including a connected person which is “SOC Report”) prepared in accordance with the requirements of AT section 801, Reporting on Controls at a broker, market maker or other intermediaryService Organization (formerly Statement on Standards for Attestation Engagements (SSAE) or its delegatesNo. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries16).
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Fund Administration and Accounting Services Agreement (Steward Funds, Inc.)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern Chase shall be obligated, as applicable, to exercise the due care and diligence of a professional mutual fund administrator and administrator, mutual fund accountant and mutual fund transfer agent in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern Chase shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s Chase's part in the performance of its duties or from reckless disregard by Northern Chase of the its obligations and duties specifically set forth in under this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement. Notwithstanding any other provision in this Agreement, Northern’s aggregate liability under this Agreement for any eighteen-month period shall not exceed the equivalent of one year’s fees paid by the Fund in the preceding twelve-month period for the Services hereunder.
(c) Subject to Sections Section 6(a) and 6(b) above, Northern Chase shall not be responsible for, and the Fund MSAM shall indemnify and hold Northern Chase harmless from and against, any and all losses, damages, costs, reasonable attorneys’ ' fees and expenses, payments, expenses and liabilities incurred by NorthernChase, any of its agents, or MSAM's or the Fund’s 's agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern Chase or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern Chase or its officers or agents of information, records, or documents which are received by Northern Chase or its officers or agents and furnished to them by or on behalf of MSAM or the Fund, and which have been prepared or maintained by MSAM or the Fund or any third party on behalf of MSAM or the Fund;
(iii) MSAM's or the Fund’s 's refusal or failure to comply with the terms of this Agreement or MSAM's or the Fund’s 's lack of good faith, or its its/their actions, or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund MSAM hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with investors and shareholders, or reasonable reliance by Northern Chase on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern Chase or its officers of or agents of any proper instructions reasonably believed to be given by a duly authorized personauthorized, or requests of MSAM or the Fund or recognition by Northern Chase of any share certificates which representing member interests (if any) are reasonably believed to bear the proper signatures of the officers of the Fund and the proper countersignature of any transfer agent or registrar of the Fund;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern Chase by data, corporate action pricing services or securities brokers and dealers;
(viii) the offer or sale of securities shares by the Fund in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such statestate (1) resulting from activities, actions, or omissions by the Fund or its service providers and agents other than Chase, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Fund prior to the effective date of this Agreement;
(ix) any failure of the Fund’s offering documents 's registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleadingmisleading in a Fund's prospectus;
(x) the failure of MSAM or the Fund and its distributor to comply with applicable securities, tax, commodities and other laws, rules and regulations; unless the Fund had reasonable reliance on information provided by Northern; , and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern Chase, MSAM or the Fund has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by MSAM or by the FundFund or its distributor, provided that each of such third parties was chosen by MSAM or by the FundFund or its distributor.
(d) In performing its services hereunder, Northern Chase shall be entitled to rely and shall have no liability for acting upon on any Authorized Instructionsoral or written instructions, notices or other communications, including electronic transmissions, from MSAM, the Fund and its custodiantheir custodians, officers and membersdirectors, investors, agents and other service providers which Northern Chase reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Fund MSAM for any loss or expense caused by such reasonable reliance.
(e) Northern Chase shall indemnify and hold MSAM and/or the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ ' fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s Chase's refusal or failure to comply with the material terms of this Agreement; Northern’s Chase's breach of any material representation made by it herein; or Northern’s Chase's lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the its duties specifically set forth in under this Agreement.
(f) The indemnifications contained hereunder shall survive the termination of this Agreement.
(g) Northern may, at the expense of the Fund, in connection with matters arising under this Agreement as a result of an instruction, request or information provided by the Fund, obtain the advice and opinion for the professional advisors to the Fund or its own professional advisors and Northern shall be entitled to rely on the advice or opinion of such professional advisors and, subject to Section 6(b) above, Northern shall not be liable for any loss suffered by the Fund as a result of any act taken by Northern in reliance upon such advice.
(h) Northern is not, and nor shall be, responsible for the management of the investments or any other assets of the Fund, including (but not limited to) the management, verification and/or monitoring of adherence to the investment policies, objectives, guidelines and restrictions applicable thereto from time to time. Consequently, Northern is not, nor shall be, liable to the Fund or any other person for any loss or damage suffered by any such person as a result of any breach of investment policies, objectives, guidelines and/or restrictions applicable in respect of the Fund. Without prejudice to the foregoing, any procedures implemented by Northern to monitor compliance by the Fund with its investment policies, objectives, guidelines and/or restrictions shall not be relied upon by the Fund or any other person.
(i) In calculating the Net Asset Value of the Fund, Northern shall not be liable for any loss suffered by the Fund by reason of any error resulting from any inaccuracy in the information provided by any pricing service. Where practicable, Northern shall use commercially reasonable efforts to confirm with third parties pricing information supplied by the Fund or any connected person thereof (including a connected person which is a broker, market maker or other intermediary) or its delegates. However, in certain circumstances it may not be possible or practicable for Northern to verify such information and in such circumstances Northern shall not be deemed to be negligent, fraudulent or in willful default of its obligations hereunder and shall not be liable for any loss suffered by the fund or any other person by reason of any error in the calculation of the Net Asset Value resulting from any inaccuracy in the information provided by the Fund or its delegates. In circumstances where Northern is directed by the Fund to use particular pricing services, brokers, market makers or other intermediaries, Northern shall not be liable for any loss suffered by the Fun or any other person by reason of error in the calculation of Net Asset Value resulting from any inaccuracy in the information provided by such pricing services, brokers, market makers or other intermediaries.
(j) The Trust and Northern agree that the obligations of the Fund under this Agreement shall not be binding upon or any member of the Board of Trustees or any shareholder, nominee, officer, employee or agent, whether past, present or future, of the Trust individually, but are binding only upon the assets and property of the Trustor of the appropriate Fund(s) thereof. The execution and delivery of this Agreement have been duly authorized by the Trust and signed by an authorized officer of the Trust, acting as such, but neither such authorization by the Trust or such execution and delivery by such officer shall be deemed to have been made by any member of the Board of Trustees or by any officer or shareholder of the Trust individually or to impose any liability on any of them personally, but shall bind only the assets and property of the Trust or of the appropriate Fund(s) thereof.
Appears in 1 contract
Samples: Mutual Funds Sub Administration Agreement (Morgan Stanley Universal Funds Inc)
