Common use of Indemnification; Limitation on Damages Clause in Contracts

Indemnification; Limitation on Damages. A. Intermediary shall indemnify and hold harmless the Fund and Distributor and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: (i) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the Fund or Shares other than statements contained in the Prospectus, advertisements, or supplemental material authorized by Distributor. B. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI will be in addition to any liability which an indemnitor may otherwise have. C. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. a. Intermediary shall indemnify and hold harmless the Fund each Company and Distributor and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended1933 Act, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund Company documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the a Fund or Shares other than statements contained in the ProspectusProspectuses, advertisements482 Ads, or supplemental material authorized by Distributor; or (v) any dispute between Intermediary and a Clearing Firm with whom it has executed a Clearing Agreement. B. b. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 9 will be in addition to any liability which an indemnitor may otherwise have. C. c. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI9. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. e. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary shall indemnify and hold harmless the each Fund and Distributor and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amendedAct, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: (i) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the a Fund or Shares other than statements contained in the ProspectusProspectuses, advertisements, or supplemental material authorized by Distributor. B. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI XII will be in addition to any liability which an indemnitor may otherwise have. C. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XIXII. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. a. Intermediary shall indemnify and hold harmless the Fund each Company, Distributor and Distributor Administrator and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended1933 Act, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund Company documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the a Fund or Shares other than statements contained in the ProspectusProspectuses, advertisements482 Ads, or supplemental material authorized by Distributor. B. b. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 9 will be in addition to any liability which an indemnitor may otherwise have. C. c. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI9. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. e. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary (a) Dealer shall indemnify and hold harmless the Fund and Fund, Distributor and each of their affiliates, directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities 1933 Act of 1933(collectively, as amended“indemnitees”), against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) IntermediaryDealer’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary Dealer to comply with any provision of this Agreement, the ProspectusProspectuses, other applicable Fund documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary Dealer of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary Dealer with respect to the Fund or Shares other than statements contained in the ProspectusProspectuses, advertisementssales literature published by the applicable Fund or Distributor, or supplemental material authorized by Distributor; or (v) any Indirect Intermediary’s performance or lack of performance in connection with Dealer’s or any Indirect Intermediary’s receipt of Orders. B. An indemnitor (b) Dealer will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 15 will be in addition to any liability which an indemnitor Dealer may otherwise have. C. (c) If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor Dealer of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor Dealer will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI15. If any such action is brought against any indemnitee and it properly notifies the indemnitor Dealer of such commencement, the indemnitor Dealer may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor Dealer elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor Dealer shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor Dealer does not elect to assume the defense of any such action, the indemnitor Dealer will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor Dealer and indemnitee. D. (d) THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary (a) The Company shall indemnify and hold harmless the Fund and Distributor and each of their directorsService Provider, trustees, officers, employeesits Affiliates, and each person, if any, who controls any of them within the meaning all of the Securities Act Representatives of 1933, as amended, Service Provider and its Affiliates (other than the Company and its subsidiaries) (each such Person being an “Indemnified Party”) from and against any and all losses, awards, claims, damagesdemands, liabilities actions, causes of action, judgments, obligations, contracts, agreements, debts, costs, expenses, disbursements, damages and liabilities, whether known or expenses unknown, contingent or otherwise, at common law, civil law and in equity, including in connection with seeking indemnification and, whether joint or several (the “LossesLiabilities”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise ), related to, arising out of or are based upon: in connection with, the services rendered by the Service Provider, the engagement of the Service Provider pursuant to, and/or the performance by the Service Provider (ior any other Person permitted hereunder) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure of the services contemplated by Intermediary to comply with any provision of this Agreement, the Prospectuswhether or not pending or threatened, other applicable Fund documentation whether or applicable lawsnot an Indemnified Party is a party, rules and regulations; (iii) any material breach by Intermediary of a representation whether or warranty made not resulting in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the Fund or Shares other than statements contained in the Prospectus, advertisements, or supplemental material authorized by Distributor. B. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI will be in addition to any liability which an indemnitor may otherwise have. C. If an indemnitee hereunder receives notice and whether or not such action, claim, demand, suit, investigation or proceeding is initiated or brought by or on behalf of any member of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) days after the summons or other first legal process has been servedCompany Group. The omission so to notify the indemnitor will not relieve it from Company shall reimburse any liability that it may have to any indemnitee otherwise than under this Section XI. If any such action is brought against any indemnitee Indemnified Party for all costs, fees, disbursements and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, expenses (including attorneys’ fees and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action expenses and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; and (iiinvestigator or consultant) the indemnitor shall notas they are incurred in connection with investigating, without the prior written consent of the indemnitee(s)preparing, settle pursuing, defending or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment assisting in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, claim, demand, suit, investigation or proceeding for which the indemnitor will reimburse Indemnified Party would be entitled to indemnification under the indemnitee(s) named as defendant(s) terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. The Company shall not be liable under the foregoing indemnification provisions to the extent any Liability of an Indemnified Party is determined by a court of competent jurisdiction, in a final judgment from which no further appeal may be taken, to have resulted primarily from the willful misconduct of such action for the Indemnified Party. The fees, expenses, costs and disbursements of an Indemnified Party (including attorneys’ fees and fees and expenses of counsel agreed any investigator or consultant) shall be paid by the Company as they are incurred upon receipt, in each case, of an undertaking by indemnitor and indemniteeor on behalf of the Indemnified Party to repay such amounts if it is finally judicially determined that the Liabilities in question resulted primarily from the willful misconduct of such Indemnified Party. D. THE PARTIES AGREE THAT(b) The Company Group’s sole and exclusive remedy against the Service Provider and any other Indemnified Party for breach of this Agreement or otherwise arising from, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENTin connection with or related to the performance of the services to be rendered hereunder, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVEshall be to offset any fees otherwise payable to the Service Provider by the amount of any Liabilities arising out of or relating to this Agreement or the services to be rendered hereunder, INCIDENTALit being understood that any recovery shall be limited to recovery of actual damages, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENTand no special, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGESconsequential, indirect, or punitive damages shall be allowed. No Indemnified Party shall be liable to the Company Group (i) for any breach hereunder by another Indemnified Party or (ii) for any breach by it, unless, with respect to this clause (ii) only, such breach constitutes willful misconduct as determined in a final judgment of a court of competent jurisdiction from which no appeal can be made.

Indemnification; Limitation on Damages. A. Intermediary a. Servicer shall indemnify and hold harmless the Fund each Company, Distributor and Distributor Administrator and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended1933 Act, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) IntermediaryServicer’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary Servicer to comply with any provision of this Agreement, the Prospectus, other applicable Fund Company documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary Servicer of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary Servicer with respect to the a Fund or Shares other than statements contained in the ProspectusProspectuses, advertisements482 Ads, or supplemental material authorized by Distributor. B. b. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 9 will be in addition to any liability which an indemnitor may otherwise have. C. c. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI9. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. d. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. a. Intermediary shall indemnify and hold harmless the Fund and each Trust, Distributor and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended1933 Act, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund Portfolio documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the Fund a Portfolio or Shares other than statements contained in the ProspectusProspectuses, advertisementsmutual fund advertisement and/or sales literature published by Distributor, or supplemental material authorized by Distributor. B. b. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 8 will be in addition to any liability which an indemnitor may otherwise have. C. c. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI8. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. e. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary a. Bank shall indemnify and hold harmless the Fund each Company, Distributor and Distributor Administrator and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended1933 Act, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) IntermediaryBank’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary Bank to comply with any provision of this Agreement, the Prospectus, other applicable Fund Company documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary Bank of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary Bank with respect to the a Fund or Shares other than statements contained in the ProspectusProspectuses, advertisements482 Ads, or supplemental material authorized by Distributor. B. b. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 9 will be in addition to any liability which an indemnitor may otherwise have. C. c. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI9. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. e. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary (a) Dealer shall indemnify and hold harmless the Fund and Fund, Distributor and each of their affiliates, directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities 1933 Act of 1933(collectively, as amendedSelected Dealer Agreement “indemnitees”), against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: upon (i) IntermediaryDealer’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary Dealer to comply with any provision of this Agreement, the ProspectusProspectuses, other applicable Fund documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary Dealer of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary Dealer with respect to the Fund or Shares other than statements contained in the ProspectusProspectuses, advertisementssales literature published by the applicable Fund or Distributor, or supplemental material authorized by Distributor; or (v) any Indirect Intermediary’s performance or lack of performance in connection with Dealer’s or any Indirect Intermediary’s receipt of Orders. B. An indemnitor (b) Dealer will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI 15 will be in addition to any liability which an indemnitor Dealer may otherwise have. C. (c) If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor Dealer of such commencement within ten (10) 10 days after the summons or other first legal process has been served. The omission so to notify the indemnitor Dealer will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI15. If any such action is brought against any indemnitee and it properly notifies the indemnitor Dealer of such commencement, the indemnitor Dealer may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor Dealer elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; them and (ii) the indemnitor Dealer shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor Dealer does not elect to assume the defense of any such action, the indemnitor Dealer will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor Dealer and indemnitee. D. (d) THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary shall indemnify and hold harmless the Fund Funds and Distributor and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended, against any losses, claims, damages, liabilities or expenses (“Losses”) to which an indemnitee may become subject insofar as such Losses or actions in respect thereof arise out of or are based upon: (i) Intermediary’s gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the Fund or Shares other than statements contained in the Prospectus, advertisements, or supplemental material authorized by Distributor. B. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI will be in addition to any liability which an indemnitor may otherwise have. C. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunder, the indemnitee will notify the indemnitor of such commencement within ten (10) days after the summons or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemnitee. D. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification; Limitation on Damages. A. Intermediary EPMI shall indemnify, defend and hold FRONTERA, and all of FRONTERA’s directors, employees, agents, affiliates and permitted assigns, harmless from and against all claims, losses, liabilities, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees and disbursements) directly incurred in connection with or directly arising out of (i) any violation of applicable law, regulation or order by EPMI and (ii) any Transaction involving the sale or exchange of any Available Energy, Capacity and Ancillary Services by EPMI [should be clear that this applies only to short term/back to back agreements] in connection with this Agreement [also need to carve out the risks that FRONTERA has agreed to assume and indemnify EPMI from against elsewhere in this Agreement (for example risk of loss)]. FRONTERA shall indemnify, defend and hold EPMI, and all of EPMI’s directors, employees, agents, affiliates and permitted assigns, harmless from and against all claims, losses, liabilities, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees and disbursements) directly incurred in connection with or directly arising out of (i) any violation of applicable law, regulation or ordera legal requirement by FRONTERA, (ii) any Transaction for the sale or exchange of Energy, Available Energy, Capacity and Ancillary Services by FRONTERA in connection with this Agreement or the Facility; and (iii) any third party claims for personal injury or property damages arising from FRONTERA’s ownership or operation of the Facility [except when such damages arise from the negligence of EPMI – how could this ever happen?]. FRONTERA shall indemnify and hold EPMI harmless the Fund from and Distributor and each of their directors, trustees, officers, employees, and each person, if any, who controls any of them within the meaning of the Securities Act of 1933, as amended, against any losses, claims, damages, liabilities or expenses (“Losses”) incurred by EPMI as a result of FRONTERA’s failure to which an indemnitee may become subject insofar as such Losses or actions perform in respect thereof arise out of or are based upon: (i) Intermediary’s accordance with this Agreement. Neither Party shall be required to indemnify the other Party for the gross negligence or willful misconduct in performing hereunder; (ii) any material failure by Intermediary to comply with any provision of this Agreement, the Prospectus, other applicable Fund documentation or applicable laws, rules and regulations; (iii) any material breach by Intermediary of a representation or warranty made in this Agreement; or (iv) any untrue statement or representation made by Intermediary with respect to the Fund or Shares other than statements contained in the Prospectus, advertisements, or supplemental material authorized by Distributor. B. An indemnitor will reimburse an indemnitee for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such Loss, claim or action. This indemnity provided in this Section XI will be in addition to any liability which an indemnitor may otherwise have. C. If an indemnitee hereunder receives notice of the commencement of an action and wishes to seek indemnification hereunderother Party or such Party’s affiliates, the indemnitee will notify the indemnitor of such commencement within ten (10) days after the summons directors, employees, agents or other first legal process has been served. The omission so to notify the indemnitor will not relieve it from any liability that it may have to any indemnitee otherwise than under this Section XI. If any such action is brought against any indemnitee and it properly notifies the indemnitor of such commencement, the indemnitor may assume the defense thereof with counsel reasonably satisfactory to the indemnitee, and the indemnitee(s) in such action entitled to indemnification hereunder may participate in the defense or preparation of the defense of any such action. If the indemnitor elects to assume the defense of any such action and retain counsel: (i) the indemnitee(s) shall bear the fees and expenses of any additional counsel retained by any of them; and (ii) the indemnitor shall not, without the prior written consent of the indemnitee(s), settle or compromise the liability of the indemnitee(s), or permit a default or consent to the entry of any judgment in respect thereof, unless each indemnitee receives from the claimant a release from all liability in respect of such claim. If the indemnitor does not elect to assume the defense of any such action, the indemnitor will reimburse the indemnitee(s) named as defendant(s) in such action for the fees and expenses of counsel agreed upon by indemnitor and indemniteepermitted assigns. D. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.