Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position. b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust. c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement. d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement. e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder. f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (FS Series Trust), Investment Sub Advisory Agreement (FS Series Trust)
Liability and Indemnification. a. Except as expressly set forth AMICUS shall indemnify, defend and hold harmless MSSM and its trustees, officers, directors, medical and professional staff, employees, students and agents and their respective successors, heirs and assigns (the “Indemnitees”), against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments: (i) arising out of the production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by AMICUS or by a licensee, Affiliate or agent of AMICUS of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement, absent or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. AMICUS’s indemnification under subsection a(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the Sub-Advisernegligent activities of the Indemnitees. AMICUS’s material breach of this Agreement indemnification under subsection a(ii) above, shall not apply to any liability, damage, toss or expense to the willful misconduct, bad faithextent that it is attributable to the negligence, gross negligence or reckless disregard intentional misconduct of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustIndemnitees.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAMICUS shall, membersat its own expense, officers, employees, agents and shareholders, and each person, if any, who controls the Fund provide attorneys reasonably acceptable to MSSM to defend against any actions brought or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, filed against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions party indemnified hereunder with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser subject of indemnity contained herein, whether or the Fund by the Sub-Adviser for inclusion in not such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementactions are rightfully brought.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersEXCEPT AS PROVIDED IN THIS SECTION 9, officersNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, employees and agentsCONSEQUENTIAL, and each personSPECIAL, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementEXEMPLARY OR PUNITIVE DAMAGES.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Licensing, Development, Manufacturing and Marketing Agreement, License and Collaboration Agreement (Amicus Therapeutics Inc)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent Neither the Sub-Adviser nor its officers, directors, employees, affiliates, agents or controlling persons shall be liable to the Adviser’s material breach , the Trust, a Fund, its shareholders and/or any other person for the acts, omissions, errors of this Agreement or judgment and/or mistakes of law of any other adviser, sub-Adviser, fiduciary and/or other person with respect to the willful misconductFund. The Adviser and the Trust, bad faith, gross negligence or reckless disregard on behalf of the obligations or duties hereunder on the part of Funds, each, as applicable, hereby agrees to indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, affiliates, agents and shareholderscontrolling persons (each an “Indemnified Party”) against any and all losses, claims, damages or liabilities (including reasonable attorneys fees and each personexpenses), if anyjoint or several, who controls relating to the Fund Agreement, the Trust or the Adviser within the meaning of Section 15 of a Fund, to which any such Indemnified Party may become subject under the Securities Act of 1933, as amended (amended, the “Securities Exchange Act of 1934, the Advisers Act”), or other federal or state statutory law or regulation, at common law, through a civil suit or otherwise. It is understood, however, that nothing in this paragraph 11 shall protect any Indemnified Party against, and hold them harmless from, or entitle any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party willto, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person Indemnified Party would otherwise be subject by reason subject, as a result of its willful misconduct, bad faith or gross negligence in the performance of such person’s duties its duties, or by reason of its any reckless disregard of such personits obligations and duties under this Agreement. The indemnification in this Section 11 shall survive the termination of this Agreement. The Sub-Adviser shall indemnify each of the Adviser, the Trust and the Funds, and their respective directors, officers, employees, affiliates, agents and controlling persons against any and all losses, claims, damages or liabilities (including reasonable attorneys fees and expenses), arising from the Sub-Adviser’s willful misconduct, bad faith or gross negligence in the performance of its duties under this Agreement, or by any reason of any reckless disregard of its obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Symmetry Panoramic Trust), Investment Sub Advisory Agreement (Symmetry Panoramic Trust)
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or other federal securities laws, neither the Sub-Adviser nor any of its officers, directors, employees or agents shall be subject to any liability to the Manager, the Trust, the Series or any shareholder of the Series for any error of judgment, any mistake of law or any loss arising out of any investment or other act or omission in the course of, connected with, or arising out of any service to be rendered under this Agreement, absent except by reason of willful misfeasance, bad faith or gross negligence in the performance of the Sub-Adviser’s material breach 's duties or by reason of reckless disregard by the Sub-Adviser of its obligations and duties, including the Sub-Adviser's duties relating to the diligence and analyses undertaken in connection with investments made by the Series.
b. The Trust agrees to indemnify out of the assets of the Series each of the Sub-Adviser and all of its officers, directors and employees (each such entity or person hereinafter referred to as a "Covered Person") against all liabilities and expenses, including but not limited to amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by any such Covered Person in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which such Covered Person may be or may have been involved as a party or otherwise or with which such Covered Person may be or may have been threatened, while in office or thereafter, by reason of any investment or other alleged act or omission in the course of, connected with or arising out of any service to be rendered under this Agreement Agreement, except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any such action, suit or other proceeding not to have acted in good faith in the reasonable belief that such Covered Person's action was in the best interests of the Series, and except that no Covered Person shall be indemnified against any liability to which such Covered Person would otherwise be subject by reason of willful misconductmisfeasance, bad faith, gross negligence or reckless disregard of the Covered Person's obligations and duties, including the Covered Person's duties relating to the diligence and analyses undertaken in connection with investments made by the Series. Expenses, including counsel fees so incurred by any such Covered Person, may be paid from time to time by the Trust in advance of the final disposition of any such action, suit or duties hereunder proceeding on the part condition that the amounts so paid shall be repaid to the Trust if it is ultimately determined that indemnification of the Sub-Advisersuch expenses is not authorized under this Section 7.b.
c. As to any matter disposed of by a compromise payment by any such Covered Person referred to in Section 7.b. above, pursuant to a consent decree or its officersotherwise, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable no such indemnification either for any act or omission in the course of, or connected with, rendering services hereunder said payment or for any losses that may other expenses shall be sustained provided unless such compromise shall be approved as in the purchasebest interests of the Series, holding or sale of any position.
b. The Sub-Adviser acknowledges after notice that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trustinvolved such indemnification, as amended. The Sub-Adviser agrees that any (i) by a disinterested majority of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series trustees of the Trust then in office; or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) by a majority of the bad faith, willful misconduct or gross negligence by disinterested trustees of the Sub-Adviser Trust then in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderoffice; or (iii) by any material breach of this Agreement disinterested person or persons to whom the question may be referred by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 trustees of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderTrust; or (iiiiv) any material breach by vote of this Agreement by shareholders of the Sub-Adviser including without limitation Series holding a majority of the Strategyshares entitled to vote thereon, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice exclusive of any actionshares beneficially owned by any interested Covered Person; provided, arbitrationhowever, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall would not protect any person such Covered Person against any liability to which any such person Covered Person would otherwise be subject by reason of willful misconductmisfeasance, bad faith or faith, gross negligence or reckless disregard of the Covered Person's duties or obligations. Approval by the trustees of the Trust pursuant to clause (i) or (ii) or by any disinterested person or persons pursuant to clause (iii) of this Section 7.c. shall not prevent the recovery from any Covered Person of any amount paid as indemnification to such Covered Person in accordance with any of such clauses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the performance reasonable belief that such Covered Person's action was in the best interests of such person’s duties the Series or to have been liable by reason of its willful misfeasance, bad faith, gross negligence or reckless disregard of such person’s obligations and the Covered Person's duties under this Agreementor obligations.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Um Investment Trust), Sub Advisory Agreement (Um Investment Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify and hold harmless the Fund Adviser, the Trust, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the 1933 Act) from and against any and all claims, losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) by reason of or arising out of the Sub-Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of its duties hereunder or its reckless disregard of its obligations and duties under this Agreement. The Adviser shall indemnify and hold harmless the Sub-Adviser and each all affiliated persons thereof to the extent that any such party incurs actual losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) by reason of their respective trusteesor arising out of the Adviser’s willful misfeasance, membersbad faith, or gross negligence in the performance of its duties hereunder or its reckless disregard of its obligations and duties under this Agreement. Neither the Sub-Adviser nor its directors, officers, employees, agents and shareholdersor controlling persons or assigns shall be liable for any error of judgment or mistake of law or for any loss suffered by the Trust, and each person, if any, who controls the any Fund or its shareholders in connection with the Adviser within the meaning matters to which this Agreement relates; provided, however, that no provision of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication this Agreement shall be deemed to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by protect the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in against liability to the form and context as provided by Trust, any Fund or its shareholders to which it might otherwise be subject directly resulting from the Sub-Adviser; (ii) the bad faith’s own willful misfeasance, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductfraud, bad faith or gross negligence in the performance of such personthe Sub-Adviser’s duties obligations under this Agreement or by reason of its reckless disregard of such person’s obligations and its duties under this Agreement. Notwithstanding anything to the contrary contained herein, no party to this Agreement, its affiliates or its affiliated persons shall be responsible or liable for its failure to perform under this Agreement or for any losses to the Assets resulting from any event beyond the reasonable control of such party or its agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, or any other similar event. In no event shall any party be responsible for incidental, consequential or punitive damages hereunder. The provisions of this Section shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Elevation Series Trust), Investment Sub Advisory Agreement (Elevation Series Trust)
Liability and Indemnification. a. Except as expressly set forth AMICUS shall indemnify, defend and hold harmless MSSM and its trustees, officers, directors, medical and professional staff, employees, students and agents and their respective successors, heirs and assigns (the "Indemnitees"), against any liability, damage, loss or expense (including reasonable attorneys' fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments: (i) arising out of the production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by AMICUS or by a licensee, Affiliate or agent of AMICUS of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement, absent or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. AMICUS's indemnification under subsection a(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the Sub-Adviser’s material breach negligent activities of this Agreement the Indemnitees. AMICUS's indemnification under subsection a (ii), above, shall not apply to any liability, damage, loss or expense to the willful misconduct, bad faithextent that it is attributable to the negligence, gross negligence or reckless disregard intentional misconduct of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustIndemnitees.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAMICUS shall, membersat its own expense, officers, employees, agents and shareholders, and each person, if any, who controls the Fund provide attorneys reasonably acceptable to MSSM to defend against any actions brought or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, filed against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions party indemnified hereunder with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser subject of indemnity contained herein, whether or the Fund by the Sub-Adviser for inclusion in not such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementactions are rightfully brought.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersEXCEPT AS PROVIDED IN THIS SECTION 9, officersNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, employees and agentsCONSEQUENTIAL, and each personSPECIAL, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementEXEMPLARY OR PUNITIVE DAMAGES.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: License Agreement (Amicus Therapeutics Inc), License Agreement (Amicus Therapeutics Inc)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActSub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made in this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement or the reckless disregard of its obligations or duties hereunder; Agreement, or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each a Fund’s Prospectus or Statement of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the performance 1940 Act or any other federal securities law, the Investment Adviser and the Sub-Adviser shall each, severally and not jointly, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its duties obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust’s property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit E. No Trustee or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing shareholder of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party Trust shall be personally liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of debts, liabilities, obligations or affect any other rights to which any person may be entitled by contract expenses incurred by, or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties contracted for under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Financial Investors Trust), Sub Advisory Agreement (Financial Investors Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, Neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants shall not be liable for any act or omission in to the course ofAdviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) or any controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsamended) (collectively, the “LossesFund Indemnitees”) insofar as for any claim, loss, liability or damage suffered by a Fund Indemnitee in connection with the subject matter of this Agreement howsoever any such Losses (claim, loss, liability or actions with respect thereto) arise out of damage may have occurred unless such claim, loss, liability or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by damage arises from the Sub-Adviser; ’s (iii) the own willful misfeasance, fraud, bad faith, willful misconduct faith or gross negligence by negligence, or to the Sub-Adviser in the performance reckless disregard of its duties under this Agreement or (ii) breach of fiduciary duty with respect to receipt of compensation for services, or as may otherwise be provided by the 1940 Act or under the provisions of other federal securities laws or applicable state law which cannot be waived or modified herein. The Sub-Adviser shall indemnify and hold harmless the Fund Indemnitees from and against any and all claims, losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) however arising from or in connection with the performance of the Sub-Adviser’s obligations under this Agreement to the extent resulting from or relating to Sub-Adviser’s own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of under this Agreement by Agreement. The Adviser shall indemnify and hold harmless the Sub-Adviser including without limitation the StrategyAdviser, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agentsemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons thereof (as described in Section 15 of the Securities ActAct of 1933, as amended) from and against any Losses suffered and all claims, losses, liabilities or sustained damages (including reasonable attorney’s fees and other related expenses) however arising from or in connection with this AgreementAgreement (including, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statementwithout limitation, any proxy statement, claims of infringement or communication to current or prospective investors in misappropriation of the Fund relating to disclosure provided to the Adviser or the Fund by intellectual property rights of a third party against the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as or any affiliated person relating to any index or index data provided to Sub-Adviser by the Sub-Adviser or Adviser; (ii) the bad faith, willful misconduct or gross negligence ’s agent and used by the Sub-Adviser in connection with performing its duties under this Agreement); provided, however, that the performance Adviser’s obligation under this Section 6 shall be reduced to the extent that the claim against, or the loss, liability or damage experienced by the Sub-Adviser is caused by or is otherwise directly related to the Sub-Adviser’s own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its duties under this Agreement. Notwithstanding anything to the contrary contained herein, no party to this Agreement shall be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Assets resulting from any event beyond the reasonable control of such party or its obligations agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or duties hereundersimilar action by any governmental authority, de facto or de jure; or (iii) enactment, promulgation, imposition or enforcement by any material breach such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, or any other similar event. In no event, shall any party be responsible for incidental, consequential or punitive damages hereunder. The provisions of this Agreement by Section shall survive the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in termination of this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Krane Shares Trust), Investment Sub Advisory Agreement (Krane Shares Trust)
Liability and Indemnification. a. A. The Adviser acknowledges that the Sub-Adviser does not guarantee investment results. Except as expressly set forth may otherwise be provided by law, neither the Sub-Adviser nor any of its managers, principals, directors, affiliates, agents, officers, members or employees (its “Affiliates”) shall be liable (i) for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser or the Trust as a result of any error of judgment, mistake of law or action performed or omitted to be performed in this Agreementmanaging the Fund by the Sub-Adviser or its Affiliates with respect to any Fund or (ii) for any failure to recommend the purchase or sale of any security on behalf of any Fund on the basis of any information which might, absent in the Sub-Adviser’s material breach reasonable opinion, constitute a violation of any federal or state laws, rules or regulations; except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part liability of the Sub-Adviser, Adviser or its officersAffiliates for, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of indemnify and accepts the limitations upon the Fund’s liability set forth in hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, “Adviser Indemnitees”) against, and hold them harmless from, any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe Investment Company Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) insofar as such Losses (or actions with respect thereto) arise common law or otherwise arising out of or are based upon on (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the willful misconduct,bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iiiii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser the Prospectus and the Fund shall indemnify the Sub-Adviser and each of its partnersSAI, officersproxy materials, employees and agentsreports, and each personadvertisements, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementsales literature, or communication other materials pertaining to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the any Fund by the Sub-Adviser or the omission to state therein a material fact known to the Sub-Adviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser Indemnitees (as defined below) for inclusion use therein.
B. Except as may otherwise be provided by law, the Adviser and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Sub-Adviser as a result of any error of judgment or mistake of law by the Adviser with respect to any Fund, except that nothing in such documents where such disclosure was actually included this Agreement shall operate or purport to operate in such documents any way to exculpate, waive or limit the liability of the Adviser for, and the Adviser shall indemnify and hold harmless the Sub-Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser Indemnitees”) against, any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or under any other statute, at common law or otherwise arising out of or based on (i) any willful misconduct, bad faith, reckless disregard or gross negligence of the Adviser in the form performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Prospectus and context as provided SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to any Fund or the omission to state therein a material fact known to the Adviser that was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser; (ii) .
C. The Sub-Adviser shall have no responsibility with respect to any assets of the bad faith, willful misconduct or gross negligence by Fund other than those of allocated to the Sub-Adviser in by the performance Adviser. Without limiting the generality of its duties under this Agreement the foregoing, neither the Fund nor any person claiming through, or on behalf of the reckless disregard Fund, or by right of its obligations the Fund, or duties hereunder; or (iii) any material breach of this Agreement by other person, shall seek to impose any liability on the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation of its managers, members, principals, directors, officers, employees, affiliates, or warranty contained in this Agreement.
e. Promptly after receipt agents, nor shall the Sub-Adviser or any of notice of any actionits managers, arbitrationmembers, claimprincipals, demanddirectors, disputeofficers, investigationemployees, lawsuit affiliates, or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may agents have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason person, arising out of willful misconductor due to the fact that the Fund lacked the capacity or authority to enter into any transaction, bad faith or gross negligence in the performance of such person’s duties to authorize or by reason of instruct Manager to enter into any transaction on its reckless disregard of such person’s obligations and duties under this Agreementbehalf.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (JNL Series Trust), Investment Sub Advisory Agreement (JNL Series Trust)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of indemnify and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify hold harmless the Fund and the Adviser and each of Trust, their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActFund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the Fund’s Registration Statement, performance of any proxy statement, of its duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents where such disclosure was actually included in such documents in its failure to perform under this Agreement or for any losses to the form and context as provided by Investment Adviser or the Sub-Adviser; (ii) Trust resulting from any event beyond the bad faith, willful misconduct or gross negligence by reasonable control of the Sub-Adviser in or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the performance of its duties under this Agreement Trust’s property; or the reckless disregard breakdown, failure or malfunction of its any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
D. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Financial Investors Trust), Sub Advisory Agreement (Financial Investors Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub-Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviserdocuments; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (iiiv) any material breach of this Agreement by the Sub-Adviser including without limitation the StrategyAgreement; provided, Governing Documents or Procedures or any representation or warranty contained however, that nothing in this AgreementAgreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and agentsshareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities ActAct (collectively, from the “Sub-Adviser Indemnitees”), against, and against hold them harmless from, any and all Losses suffered or sustained incurred by each of them in connection with this Agreement, provided that so far as such Losses did not result from (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in such documents in good faith pursuant to and consistent with the form and context as provided by Adviser’s written instructions to the Sub-Adviser; (iiiii) the bad faith, willful misconduct or gross negligence by of the Sub-Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (iiiv) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser including without limitation the StrategyIndemnitee would otherwise be subject by reason of his, Governing Documents her or Procedures its willful misfeasance, bad faith, gross negligence or any representation or warranty contained in this Agreementreckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (FS Series Trust), Investment Sub Advisory Agreement (FS Series Trust)
Liability and Indemnification. a. Except To the extent permitted by applicable Florida and/or federal law, the Vendor and Fiscal Sponsor shall be liable as expressly set forth in this Agreementwell as indemnify, absent defend, release and hold harmless the Sub-Adviser’s material breach Coalition and all of its officers, agents, members, directors and employees from all claims, suits, judgments, or damages, including attorneys’ fees (including all levels of appeal) and court costs and expenses, related to or arising out of any actions, negligence and/or omissions of the Vendor, Fiscal Sponsor, or if applicable, its agents, officers, subcontractors, members, directors, or employees during the performance or delivery of the Scope of Services and/or operation of this Agreement (including any subsequent modifications thereof), whether direct or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersindirect, and each personwhether to any person or tangible or intangible property, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ any and accountants’ fees and disbursements) (collectivelyall claims, “Losses”) insofar as such Losses (demands, or actions with respect thereto) arise out causes of action of any nature whatsoever resulting from injuries or are based upon (i) damages sustained by any actual material misstatement person or omission in property. To the Fund’s Registration Statementextent considered necessary by the Coalition, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided sums due to the Adviser Vendor or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties Fiscal Sponsor under this Agreement or may be retained by the reckless disregard Coalition until all of its obligations or duties hereunder; or (iii) any material breach of the Coalition’s claims for indemnification pursuant to this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents have been settled or Procedures or otherwise resolved; and any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section amount withheld shall not be exclusive subject to payment of or affect interest by the Coalition. Nothing herein shall be construed to waive any other rights to which any person sovereign immunity that may be entitled applicable to the Coalition pursuant to Florida and/or federal law. In the event the Vendor or Fiscal Sponsor utilizes subcontractor(s) to perform and/or deliver the Scope of Services and the subcontractor does not meet the definition set forth in Section 768.28(2), Florida Statutes, the Vendor or Fiscal Sponsor shall be responsible for ensuring that the subcontractors utilized by contract the Vendor or otherwise by law, Fiscal Sponsor comply with the liability and indemnity requirements as set forth herein. This Section 13 (Liability and Indemnification) shall not protect any person against any liability to which any such person would otherwise be subject by reason survive the expiration or earlier termination of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Vendor Agreement, Vendor Agreement
Liability and Indemnification. a. Except as expressly set forth in this Agreementprovided below, absent the Sub-Adviser’s material breach THIRD SECURITY and all of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, managing directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersemployees shall have no liability, and each personwhether direct or indirect, if anyin contract, who controls the Fund tort or the Adviser within the meaning of Section 15 of the Securities Act of 1933otherwise, as amended (the “Securities Act”)under this Agreement for any damage, against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses loss or other harm (including, without limitation, reasonable attorneys’ out-of-pocket expenses and accountants’ fees and disbursementsdisbursements of counsel) of any type suffered by NEW RIVER or any third party in connection with the performance or non-performance of this Agreement or the Services contemplated hereby or any action or in-action of any of the indemnified parties in connection with the foregoing, except for any such damage, loss or other harm directly caused by or directly resulting from the gross negligence or willful misconduct of THIRD SECURITY in connection with the performance or non-performance of this Agreement or the Services contemplated hereby or the action or inaction of any of the indemnified parties in connection with the foregoing. In the event of a third party claim, NEW RIVER, including its successors and assigns, for itself and on behalf of all of its subsidiaries, shall indemnify, defend and hold harmless THIRD SECURITY and all of its managing directors, officers, agents and employees from and against any and all such damages, losses and other xxxxx (collectivelyincluding, “Losses”without limitation, out-of-pocket expenses and fees, counsel fees and disbursements of counsel) insofar as such Losses (caused by or actions with respect thereto) arise arising out of the performance or are based upon non-performance of this Agreement or the Services contemplated hereby or the actions or in-actions of any of the indemnified parties in connection with the foregoing other than any such damage, loss or other harm directly caused by or directly resulting from the gross negligence or willful misconduct of THIRD SECURITY in connection with the performance or non-performance of this Agreement or the Services contemplated hereby or the actions or in-actions of any of the indemnified parties in connection with the foregoing. The total liability of THIRD SECURITY under this Section 6 will not under any circumstances exceed the aggregate amount of actual fees paid to THIRD SECURITY by NEW RIVER pursuant to this Agreement. Notwithstanding any other provision of this Agreement, THIRD SECURITY shall have no liability for (i) any actual material misstatement lost profits or omission in any incidental, consequential, special, indirect or similar damages of any kind or nature whatsoever of NEW RIVER or any third party (including the Fund’s Registration Statement, any proxy statement, fees and expenses of counsel) or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct acts or gross negligence by omissions of any third party (other than THIRD SECURITY) that provides Services hereunder. This Section 6 shall survive the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach termination of this Agreement by until such time as the Sub-Adviser obligations of the parties (including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained their respective successors and assigns) set forth in this AgreementSection 6 have been fully satisfied.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Services Agreement (New River Pharmaceuticals Inc), Services Agreement (New River Pharmaceuticals Inc)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the each Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities ActFund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by a Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of a Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents where such disclosure was actually included in such documents in its failure to perform under this Agreement or for any losses to the form and context as provided by Investment Adviser or the Sub-Adviser; (ii) Trust resulting from any event beyond the bad faith, willful misconduct or gross negligence by reasonable control of the Sub-Adviser in or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the performance of its duties under this Agreement Trust’s property; or the reckless disregard breakdown, failure or malfunction of its any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
D. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Sprott Funds Trust), Sub Advisory Agreement (Sprott Funds Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify and hold harmless the Fund Adviser, the Trust, all affiliated persons thereof(within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the 1000 Xxx) from and against any and all claims, losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) by reason of or arising out of the Sub-Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of its duties hereunder or its reckless disregard of its obligations and duties under this Agreement The Adviser shall indemnify and hold harmless the Sub-Adviser and each all affiliated persons thereof to the extent that any such party incurs actual losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) by reason of their respective trusteesor arising out of the Adviser’s willful misfeasance, membersbad faith, or gross negligence in the performance of its duties hereunder or its reckless disregard of its obligations and duties under this Agreement. Neither the Sub-Adviser nor its directors, officers, employees, agents and shareholdersor controlling persons or assigns shall be liable for any error of judgment or mistake of law or for any loss suffered by the Trust, and each person, if any, who controls the any Fund or its shareholders in connection with the Adviser within the meaning matters to which this Agreement relates; provided, however, that no provision of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication this Agreement shall be deemed to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by protect the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in against liability to the form and context as provided by Trust, any Fund or its shareholders to which it might otherwise be subject directly resulting from the Sub-Adviser; (ii) the bad faith’s own willful misfeasance, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductfraud, bad faith or gross negligence in the performance of such personthe Sub-Adviser’s duties obligations under this Agreement or by reason of its reckless disregard of such person’s obligations and its duties under this Agreement. Notwithstanding anything to the contrary contained herein, no party to this Agreement, its affiliates or its affiliated persons shall be responsible or liable for its failure to perform under this Agreement or for any losses to the Assets resulting from any event beyond the reasonable control of such party or its agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, or any other similar event. In no event, shall any party be responsible for incidental, consequential or punitive damages hereunder. The provisions of this Section shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Elevation Series Trust)
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees or agents shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 36(b)(3) of the 1000 Xxx) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.
(b) Adviser and Sub-Adviser agree to defend, absent indemnify and hold harmless the other and each of their respective officers, directors, members, employees and/or agents from any and all claims, losses, damages, liabilities, costs and/or expenses directly resulting from the other’s violation of any of the terms of this Agreement. Adviser and Sub-Adviser’s obligations under this paragraph shall survive the termination of this Agreement.
(c) Any person, even though also a director, officer, employee, shareholder, member or agent of the Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s material breach of this Agreement duties hereunder), to be rendering such services to or acting solely for the willful misconductTrust and not as a director, bad faithofficer, gross negligence employee, shareholder, member or reckless disregard of the obligations or duties hereunder on the part agent of the Sub-Adviser, or its officersone under the Sub- Adviser’s control or direction, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided even though paid by the Sub-Adviser; .
(iid) As used in this Section 10, the bad faith, willful misconduct or gross negligence by term the “Sub-Adviser in the performance Adviser” shall include any affiliates of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its the partners, officersshareholders, directors, officers and employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.such
Appears in 1 contract
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees, control persons or affiliates, shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates provided that nothing herein shall be construed to protect the Sub-Adviser or its shareholders, members, officers, directors, employees, control persons or affiliates in the event of (i) a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in this AgreementXxxxxxx 00(x)(0) xx xxx 0000 Xxx), absent (xx) from the Sub-Adviser’s material breach of this Agreement or the Agreement, willful misconductmisfeasance, bad faith, gross negligence negligence, or reckless disregard of its obligations and duties under this Agreement, or (iii) any untrue statement of a material fact (or an omission of such statement) contained in the obligations Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund or the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund or the Adviser by the Sub-Adviser or any director, officer, agent, control person, affiliate or employee of the Sub-Advisor for use therein. No provision of this Agreement shall be construed to protect any director or officer of the Adviser or Sub-Adviser from liability in violation of Sections 17(h) or (i) of the 1940 Act.
(b) Any person, even though also a director, officer, employee, shareholder, member or agent of the Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s duties hereunder on hereunder), to be rendering such services to or acting solely for the part Trust and not as a director, officer, employee, shareholder, member or agent of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, one under the Sub-Adviser shall not be liable for any act Adviser’s control or omission in the course ofdirection, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided even though paid by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (Mutual Fund & Variable Insurance Trust)
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities Act”), against, and hold them harmless from, "Sub-Adviser Indemnitees") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on the Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each Prospectuses or Statements of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein. Except as may otherwise be provided by the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by other federal securities law, the Sub-Adviser shall indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the "Fund Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including without limitation reasonable legal and other expenses) to which any of the StrategyFund Indemnitees may become subject at common law or otherwise, Governing Documents arising out of the Sub-Adviser's action or Procedures inaction or based on the Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of made herein or (ii) any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of such person’s any of its duties or by reason obligations hereunder. Notwithstanding the foregoing, the Fund shall not be deemed to have waived any right which, under applicable law, cannot be waived. No Trustee or shareholder of its reckless disregard the Trust shall be personally liable for any debts, liabilities, obligations or expenses incurred by, or contracted for under the Agreement. No Fund will be liable for any debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under the Agreement. This Section 7 shall survive the termination of such person’s obligations and duties under this the Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement7.1 Yissum, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its HUJ and their respective officers, directors, partners, agents, employees and controlling personsagents and the Consultant (the “Indemnitees”), the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all claims, actions, demands, losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ legal and accountants’ fees expert fees) made, brought or suffered by the Company or by any third parties arising from or in connection with the Consulting Services, unless caused by the gross negligence or willful misconduct or breach of this Agreement by or of any of the Indemnitees (the “Damages”).
7.2 In the event one or more of the Indemnitees should suffer any Damages, as set forth in Section 7.1 above or will be obligated to pay third parties any amount as compensation for any such Damages, the Company will indemnify such Indemnitee/s and disbursements) (collectivelyhold them harmless from and against any and all such Damages. To be eligible to be indemnified hereunder, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon Yissum and/or other Indemnitees shall (i) any actual material misstatement promptly notify the Company of the relevant claim, action or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviserproceeding; (ii) the bad faithCompany shall have the right to assume the sole control over the investigation, defense and settlement of such claim, action or proceeding, with the reasonable cooperation of the Indemnitees, at the Company’s expense; and (iii) the Indemnitees shall not make any admissions or compromise any claim, action or proceeding without the Company’s prior written consent. The Indemnitees shall be entitled to retain their own counsel at their sole cost and expense, without interfering with the Company’s control over the proceedings.
7.3 Except for any liability or obligation under Section 5 (Confidentiality; Publication) and Section 7.1 above, or for the misappropriation of any of the Company’s intellectual property, or any liability resulting from gross negligence or willful misconduct or gross negligence misrepresentation by the Sub-Adviser Company under applicable state and securities law, none of the Parties shall be liable to the other Parties (whether under contract, tort (including negligence) or otherwise), for any special, punitive, indirect, incidental or consequential damages of any kind, including lost profits, business interruption losses, loss of business or loss of data, arising out of or in connection with the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that even if such Losses did not result from (i) any actual material misstatement Party is advised or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing should have known of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderpossibility thereof.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Consulting Agreement (Weed, Inc.)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the each Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities ActFund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by a Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of a Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents where such disclosure was actually included in such documents in its failure to perform under this Agreement or for any losses to the form and context as provided by Investment Adviser or the Sub-Adviser; (ii) Trust resulting from any event beyond the bad faith, willful misconduct or gross negligence by reasonable control of the Sub-Adviser in or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the performance of its duties under this Agreement Trust’s property; or the reckless disregard breakdown, failure or malfunction of its any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
D. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except 1.10.1 The Licensee undertakes to indemnify the Licensor against all liabilities, claims, demands, expenses, actions, costs, damages or loss arising out of breach or alleged breach by the Licensee in regard to the Licensee’s obligations under this Agreement. Such indemnity shall survive the termination of this Agreement.
1.10.2 The Licensor shall not be liable to the Licensee for consequential, indirect, special or exemplary damages including but not limited to damages for loss of profits, business or anticipated benefits whether arising under tort, contract, negligence or otherwise whether or not foreseen, reasonably foreseeable or advised of the possibility of such damages.
1.10.3 No responsibility is assumed by the Licensor for any injury and/or damage to persons or property as expressly set forth a matter of product liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in any item or Product supplied by the Licensor under this Agreement.
1.10.4 The express terms of this Agreement are in lieu of:
A. All warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise including but not limited to any implied warranties of merchantability or fitness for any particular purpose all of which are hereby excluded to the fullest extent permitted by law; and
1.10.5 Any implied terms as to the performance of computers or networks when used in conjunction with the Product, materials, information, goods, services, technology and/or editorial content provided under this Agreement.
1.10.6 Nothing in this Agreement shall exclude or limit either Party’s liability for:
A. death or personal injury resulting from the negligence of either Party or their servants, agents or employees;
B. fraud or fraudulent misrepresentation; or
C. breach of any implied condition as to title, or the ability to exercise any right granted under this Agreement, absent .
1.10.7 Nothing in this Agreement shall prevent the Sub-Adviser’s material breach Licensor from claiming for amounts lawfully due under the terms of this Agreement or operate to limit any liability resulting from any infringement or breach of Intellectual Property Rights by the willful misconduct, bad faith, gross negligence or reckless disregard of Licensee. Where the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be Licensor is liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets Licensee for negligence, breach of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from contract or any other series cause of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise action arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did liability shall not result from (i) any actual material misstatement or omission in exceed the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided amount equal to the Adviser or total sum of the Fund Fees (exclusive of all taxes) paid by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have Licensee to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderLicensor since the Effective Date.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Software License Agreement
Liability and Indemnification. a. Except as expressly set forth in this AgreementThe Sellers shall indemnify, absent the Sub-Adviser’s material breach of this Agreement or the willful misconductdefend (upon request) and hold harmless Purchaser, bad faithits officers, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviseremployees, or its members, affiliates (and their respective officers, directors, partnersand members), agents, employees and controlling personsagents (collectively, the Sub-Adviser shall not be liable for "Indemnified Parties") from and against any act action, loss, liability, damage, claim, fine, penalty, lien or omission in the course ofexpense, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitationincluding legal costs, reasonable attorneys’ ' fees, and accountants’ fees and disbursements) expenses, (collectively, “Losses”"Loss") insofar as such Losses (or actions with respect thereto) arise to the extent the same arises out of or are based upon (i) any actual material misstatement or omission in breach by any of the Fund’s Registration StatementSellers of any representation, any proxy statementwarranty, agreement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund covenant made by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; either of them herein, (ii) any tax, including use or sales tax, for which Sellers is or may be liable in respect of the bad faith, willful misconduct or gross negligence by Acquired IP prior to the Sub-Adviser in the performance of its duties under this Agreement date hereof or the reckless disregard of its obligations or duties sale hereunder; , or (iii) any material breach claim arising out of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreementthe Acquired IP prior to the date hereof.
b. Each Indemnified Party will give prompt notice to the Sellers of any claim or condition to which the foregoing indemnification covenant relates, provided that such Losses did not result from (i) any actual material misstatement or omission within 7 business days of becoming aware of the same. The Sellers shall have the right to participate in the Fund’s Registration Statementdefense of such claim, at their expense with counsel of its choice, but the respective Indemnified Party or Parties shall retain the right at all times to control the defense of such claims and in no event shall the Sellers settle any proxy statementsuch claim without the consent of the respective Indemnified Party or Parties.
c. Notwithstanding anything to the contrary stated herein or otherwise, and to the extent permissible under any mandatory law or communication regulation, the Sellers' liability and indemnification obligations hereunder shall not exceed NIS100,000, being the amount equal to current or prospective investors the initial value of the Shares issued to them as consideration for the sale of the Acquired IP hereunder, except in the Fund relating to disclosure provided to the Adviser event of fraud or the Fund willful misconduct by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementSellers.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Infinity Augmented Reality, Inc.)
Liability and Indemnification. a. Except as expressly set forth (a) Stein Roe shall not be liaxxx xx xxy Trust for any action taken or thing done by it or its employees or agents on behalf of the Trust in this Agreement, absent carrying out the Sub-Adviser’s material breach terms and provisions of this Agreement or the willful misconduct, bad faith, gross if done in good faith and without negligence or reckless disregard of the obligations or duties hereunder misconduct on the part of the Sub-AdviserStein Roe, or its officers, directors, partners, empxxxxxx xx agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. (b) The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdershold Stein Roe, and each personits xxxxxxxxing persons, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, from any and all claims, actions, suits, losses, claimscosts, damages, liabilitiesand expenses, costs and including reasonable expenses (includingfor counsel, without limitationincurred by it in connection with its acceptance of this Agreement, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement action or omission in the Fund’s Registration Statement, any proxy statement, by it or communication to current its employees or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser agents in the performance of its duties under this Agreement hereunder to the Trust, or as a result of acting upon instructions believed by it to have been executed by a duly authorized agent of the reckless disregard Trust or as a result of its obligations or duties hereunder; or (iii) any material breach of this Agreement acting upon information provided by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained Trust in this Agreement.
d. The Adviser form and under policies agreed to by Stein Roe and the Fund shall indemnify the Sub-Adviser and each of its partnersTrust, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from xxovided that: (i) any actual material misstatement or omission in to the Fund’s Registration Statementextent such claims, any proxy statementactions, suits, losses, costs, damages, or communication expenses relate solely to current one or prospective investors in more Series, such indemnification shall be only out of the Fund relating to disclosure provided to the Adviser assets of that Series or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Advisergroup of Series; (ii) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of Stein Roe or its employees xx xxxxxs, including but not limited to willful misfeasance, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Stein Roe shall give the Txxxx prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Stein Roe.
(c) Stein Xxx xxxxx indemnify xxx xxxx harmless the Trust from and against any and all claims, demands, expenses and liabilities which such Trust may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Stein Roe or its agents or xxxxxxxxors, or the breach by Stein Roe of its obligatioxx xxxxx this Agreement, provided that: (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of such Trust or its other agents or contractors and (ii) such Trust shall give Stein Roe prompt nxxxxx xxx xxxxxxxble opportunity to defend against any such claim or action in its own name or in the name of such Trust.
Appears in 1 contract
Samples: Accounting and Bookkeeping Agreement (Liberty Stein Roe Advisor Trust)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Advisergross negligence, or its officers, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including reasonable legal and other expenses) incurred or suffered by the course ofInvestment Adviser, the Fund or connected with, rendering services hereunder the Trust as a result of any error of judgment or for any losses that may be sustained action or inaction taken in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that good faith by the Sub-Adviser shall not seek satisfaction of any such obligation from or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the shareholders of the Fund nor from 1940 Act or any other series of federal securities law, the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Investment Adviser shall indemnify and hold harmless the Fund and the Adviser and each of their respective trusteesSub- Adviser, its members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActSub- Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub- Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made in this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement or the reckless disregard of its obligations or duties hereunder; Agreement, or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each a Fund’s Prospectus or Statement of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the performance 1940 Act or any other federal securities law, the Investment Adviser and the Sub-Adviser shall each, severally and not jointly, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its duties obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust’s property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit E. No Trustee or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing shareholder of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party Trust shall be personally liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of debts, liabilities, obligations or affect any other rights to which any person may be entitled by contract expenses incurred by, or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties contracted for under this Agreement.
Appears in 1 contract
Samples: Interim Sub Advisory Agreement (Financial Investors Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser11.1. Each Party’s material breach of maximum liability for direct damages under this Agreement to the other Party shall always be limited to the amount in fees hereunder actually paid or payable by the willful misconductAffiliate to the Company. Each Party releases the other Party from all obligations, bad faithliability, gross negligence claims or reckless disregard demands in excess of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser aforementioned limitation.
11.2. The Company shall not be liable in contract, tort, for breach of statutory duty or in any other way for any act indirect damages or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchaseoccur as a consequence of this Agreement whatsoever, holding such as any economic loss, loss of profit, loss of savings, loss of goodwill or sale of any positionreputation, or other consequential damage.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended11.3. The Sub-Adviser agrees that any above stated limitations of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser liability shall not seek satisfaction apply in case of any such obligation from acts of gross negligence or willful misconduct by the shareholders of the Fund nor from any other series of the Trust liable Party or any Trustees anyone acting on its behalf, or officer, employee or agent of the Fund or other series of the Trustif expressly stated elsewhere in this Agreement.
c. 11.4. The Sub-Adviser shall Affiliate agrees to defend, indemnify and hold the Fund Company and the Adviser and each its group of their respective trusteescompanies/affiliates, memberssuccessors, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, directors, shareholders and each personattorneys, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, free and harmless from and against any Losses suffered and all claims and liabilities, including reasonable legal and expert fees, related to or sustained in connection with arising from:
a) any breach of Affiliate's representations, warranties or obligations under this Agreement, provided that such Losses did not result from ;
b) Affiliate's use (ior misuse) of the marketing material and the Company's and/or its group companies' Intellectual Property Rights;
c) all conduct and activities occurring under Affiliate's user ID and password;
d) any actual defamatory, libellous or illegal material misstatement contained on the Affiliate Website(s) or omission in Affiliate's information and data;
e) any claim or contention that the Fund’s Registration StatementAffiliate Website(s) or the Affiliate's information and data infringes any third party's patent, any proxy statementcopyright, trademark, or communication to current other intellectual property rights or prospective investors in violates any third party's rights of privacy or publicity;
f) third party access or use of the Fund relating to disclosure provided to the Adviser Affiliate Website(s) or the Fund by Affiliate's information and data;
g) any claim related to Affiliate Website(s) or the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-AdviserLinks; (iiand
h) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance any violation of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementapplicable laws.
e. Promptly after receipt 11.5. The Company and its group of notice companies reserves the rights to participate, at its own expense, in the defense of any action, arbitration, claim, demand, dispute, investigation, lawsuit matter or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have relation to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderabove.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Affiliate Agreement
Liability and Indemnification. a. Except as expressly set forth in this Agreement(a) Neither the General Partner, absent the Sub-Adviser’s material breach of this Agreement or the willful misconductInvestment Manager nor their managers, bad faithmembers, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partnersaffiliates and employees shall be liable to the Partnership or the Limited Partners for any action taken or omitted to be taken in connection with the business or affairs of the Partnership so long as such person or entity or person acted in good faith and is not found to be guilty of gross negligence or willful misconduct with respect thereto. It shall be conclusively presumed and established that such entities or persons acted in good faith if any action is taken, agentsor not taken, employees by it on the advice of legal counsel or other independent outside consultants.
(b) The Partnership agrees to indemnify and controlling personshold harmless the General Partner, the Sub-Adviser shall not be liable for Investment Manager and their managers, members, officers, directors, affiliates and employees from and against any act and all claims, actions, demands, losses, costs, expenses (including attorneys’ fees and other expenses of litigation), damages, penalties or omission in the course ofinterest, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale as a result of any positionclaim or legal proceeding related to any action taken or omitted to be taken in connection with the business and affairs of the Partnership (including the settlement of any such claim or legal proceeding); provided, however, that the party against whom the claim is made or legal proceeding is directed is not guilty of gross negligence or willful misconduct as determined by a final non-appealable court of competent jurisdiction. Any indemnity under this Section shall be paid from and to the extent of Partnership assets only, and only to the extent that such indemnity does not violate applicable Federal and state laws.
b. The Sub-Adviser (c) If, to the extent, and at such times as any assets of the Partnership are deemed to be “plan assets” within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), of any Limited Partner that is an employee benefit plan governed by XXXXX, the General Partner will be, and hereby acknowledges that it has received notice will be considered to be, a fiduciary within the meaning of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration Section 3(21) of TrustERISA as to that Limited Partner. In such an event, as amended. The Sub-Adviser agrees that or if any partner, employee, agent or affiliate of the Fund’s obligations General Partner, is ever held to be a fiduciary of any Limited Partner, then, in accordance with Sections 405(b)(1), 405(c)(2) and 405(d) of ERISA, the fiduciary responsibilities of that person shall be limited to the assets person’s duties in administering the business of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerPartnership, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section person shall not be exclusive of or affect responsible for any other rights duties to which any person may be entitled by contract such Limited Partner, specifically including evaluating the initial or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason continued appropriateness of willful misconduct, bad faith or gross negligence this investment in the performance Partnership under Section 404(a)(1) of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this AgreementERISA.
Appears in 1 contract
Samples: Limited Partnership Agreement
Liability and Indemnification. a. Except a) Unless the relevant action or omission giving rise to a claim is found by a final determination of an arbitrator, mediator or court of competent jurisdiction, as expressly set forth in this Agreementthe case may be, absent to have resulted primarily from the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard willful misconduct of an Indemnified Party (as defined below) in connection with the performance of its duties and obligations under this Agreement, none of the obligations or duties hereunder on the part of the Sub-AdviserService Provider, or its officers, directors, partnersmembers, shareholders, employees, affiliates or agents, employees or any of their successors and controlling personsassigns, the Sub-Adviser (each an “Indemnified Party”) shall not be liable to the Fund, or any of their officers, directors, investors, beneficiaries or employees, or any of their respective successors or assigns, under this Agreement or otherwise for any act action taken or omission omitted by any of them in connection with this Agreement or the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of business and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any affairs of the Fund. In addition, the parties hereby agree that neither shall be liable to the other for any amount pertaining to a circumstance arising during the parallel or pre-launch period.
b) In any event the Indemnified Party’s obligations total liability arising in contract, tort (including but not limited to gross negligence), misrepresentation, restitution or otherwise arising in connection with the performance of this Agreement shall be limited to the assets greater of: (i) the price paid under the Monthly Services Fee under all Services Agreements that the Service Provider has with the Managing Member, its affiliates under common control and the funds they manage (including the Fund), for the five (5) years prior to the resolution of any dispute or termination of this Agreement, whichever is the greater; or (ii) USD Five Million.
c) Except with respect to the indemnification obligations set forth below, neither the Fund, on the one hand, nor the Service Provider, on the other, shall have any liability to the other for consequential, exemplary, special, incidental or punitive damages incurred in connection with any claim arising out of or relating to this Agreement including but not limited to loss of business or lost profits.
d) Unless the action or omission by an Indemnified Party is found by a final determination of an arbitrator, mediator or court of competent jurisdiction, as the case may be, to have resulted primarily from the fraud, gross negligence or willful misconduct of an Indemnified Party in connection with the performance of its duties and obligations under this Agreement, the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall promptly indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, all Indemnified Parties from and against any and all losses, claims, damagesjudgments, liabilities, costs and costs, expenses (including, without limitation, reasonable attorneys’ and accountants’ legal fees and disbursementsexpenses) and amounts paid in settlement (collectively, “Losses”) insofar as provided such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission settlement was approved in writing by the Fund’s Registration Statement, which approval shall not be unreasonably withheld or delayed) of any claims arising out of, or in connection with, any proxy statement, action taken or communication to current or prospective investors omitted by any Indemnified Party in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under connection with this Agreement or the reckless disregard business, actions and affairs of the Fund and/or arising out of, or in connection, with any delay or failure by the Fund to perform its obligations or duties hereunder; or (iii) any material breach of this Agreement by hereunder on a timely basis. In addition, the Sub-Adviser including without limitation parties hereby also agree and acknowledge that the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser Service Provider and the Fund its agents and affiliates shall indemnify the Sub-Adviser be held harmless and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, fully indemnified from and against any Losses suffered and all losses, claims, judgments, liabilities, costs, expenses (including, without limitation, reasonable legal fees and expenses) and amounts paid in settlement by the other party(ies) hereto resulting from if the Fund or sustained in connection with this Agreementthe Managing Member, or any of their agents, knowingly provided that the Service Provider any information known by such Losses did not result from (iprovider to be false or untrue.
e) any actual material misstatement Each Indemnified Party shall be entitled to rely on the advice of the Managing Member’s or omission in the Fund’s Registration Statementlegal counsel, accountants and/or other experts or professional advisors, and any proxy statementact or omission of such Indemnified Party acting in reliance upon such advice will in no event subject him, her, or communication it to current or prospective investors in the Fund relating to disclosure provided liability to the Adviser Fund, or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faithits shareholders, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation of their employees, or warranty contained in this their respective successors or assigns under the Agreement.
e. Promptly f) With respect to any claim or action for which indemnification will be sought by an Indemnified Party, such Indemnified Party will promptly, after receipt knowledge of notice of any action, arbitration, such claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party Fund in writing in as much detail as possible as to the existence and nature of the commencement of such Proceeding; provided thatclaim, but the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party Fund from any indemnification liability which that it may otherwise have to such Indemnified Party except to the extent that the Fund is materially prejudiced or forfeit any substantive rights or defenses as a result of such failure. The Fund will be entitled to participate in such claim and, to the extent desired, to assume the defense thereof (except for claims deemed by the Indemnified Party to have the potential to affect the reputation of Indemnified Party; ), with counsel of its choice, provided that the Indemnified Party may participate in (but not control) such party is not materially prejudiced by such failure to notifydefense. No Indemnifying Party shall be liable under this section for any settlement If the Fund does assume the defense of any Proceeding entered into without its consent with respect claim, the Indemnified Party will have the right to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in undertake the performance defense of such person’s duties claim, by counsel or by reason other representatives of its reckless disregard own choosing, on behalf of and for the account and risk of the Fund (subject to the right of the Fund to assume the defense of such person’s obligations and duties under this Agreementclaim at any time prior to settlement, compromise or final determination thereof).
Appears in 1 contract
Samples: Administrative Services Agreement (KMP Futures Fund I LLC)
Liability and Indemnification. a. Except as expressly set forth in The Customer is responsible for and shall pay any and all investment loss (subject to this AgreementSection), absent costs, fees and expenses (including, but not limited to, brokerage fees) associated with the Sub-Adviser’s material breach investment of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionAccount assets.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerindemnify, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, defend and hold them harmless from, the Customer from and against any and all losses, claims, damages, liabilitiesjudgments, liabilities (joint and several), fines and reasonable costs and expenses (including, without limitation, including reasonable attorneys’ and accountants’ fees and disbursementsattorney fees) (collectively, “collectively "Losses”") insofar as such Losses (or actions with respect thereto) arise out of or that are based upon (i) any actual material misstatement caused by an act or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to of the Adviser or the Fund its affiliates or any of their respective officers, employees or directors (collectively "Adviser Party") in relation to this Agreement that constitutes gross negligence or willful misconduct.
c. The Adviser shall have no liability except for acts or omissions by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, or an Adviser Party that constitute gross negligence or willful misconduct in relation to this Agreement provided, however, that the Adviser shall have no liability for any Losses incurred by reason of any investment decision made in what the Adviser or gross negligence by an Adviser Party believes in good faith to be the Sub-Adviser in the proper performance of its duties under hereunder, and the Adviser shall not, in any event, be liable for any loss or liability incurred as a result of any act or failure to act on the part of any trustee or any Broker or custodian or other third party, with respect to the Account.
d. The Customer shall indemnify, defend and hold harmless the Adviser and each Adviser Party from and against any and all losses, claims, damages, judgments, liabilities (joint and several), fines and reasonable costs and expenses (including reasonable attorney fees) (again, collectively "Losses") relating to, or arising in connection with, the business of or activities undertaken by the Adviser or an Adviser Party pursuant to this Agreement or the reckless disregard a breach of its obligations or duties hereunder; or (iii) any a material breach provision of this Agreement by the Sub-Customer, except the Customer shall not be required to indemnify, defend or hold harmless the Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and Party to the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided extent that such Losses did not result from (i) any actual material misstatement are caused by an act or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to of the Adviser or the Fund by the Sub-any Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faithParty that constitute gross negligence, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material a breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in a material provision of this Agreement.
e. Promptly after receipt of notice of In no event shall such Losses include, nor shall either party be liable to another for, indirect, special, exemplary, or consequential damages.
f. Any suggested limitations on liability herein shall not relieve the Adviser from any action, arbitration, claim, responsibility or liability the Adviser may have under federal or state statutes or common law.
g. In the event an indemnified party ("Indemnified Party") shall receive any demand, dispute, investigation, claim or lawsuit or other proceeding (each a “Proceeding”) by a party seeking subject to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)an indemnification obligation hereunder, the Indemnified Party will, if a claim in respect thereof is to be made against a shall promptly notify the indemnifying party against whom indemnification is sought under Section 9(c) or 9(d) (the “"Indemnifying Party”") notify the Indemnifying Party in writing of the commencement of such Proceeding; provided thatprovided, the however, that failure to so notify the Indemnifying Party provide such notice shall not relieve the Indemnifying Party from any indemnification liability which it may have of its obligations hereunder, except to the extent that such Indemnifying Party is materially harmed by such failure.
h. Subject to the prior consent of the Indemnified Party; provided that such party is , which consent shall not materially prejudiced by such failure to notify. No be unreasonably withheld, the Indemnifying Party shall be liable under this section entitled to select counsel for any matters subject to the Indemnifying Party's indemnification obligation. Subject to the prior consent of the Indemnified Party, which consent shall not be unreasonably withheld, the Indemnifying Party shall retain decision-making control regarding handling and resolving, including settlement of, such demand, claim or lawsuit subject to the Indemnifying Party's indemnification obligation.
i. Subject to the next sentence, in the event that such Indemnifying Party elects to assume the defense of such demand, claim or lawsuit and retain such counsel, the Indemnified Party shall bear the fees and expenses of any Proceeding entered into without its consent with respect additional counsel thereafter retained by it or them. If in any claim, action or suit as to which indemnity is ultimately available, an Indemnified Party reasonably determines that its interests are or may be sought hereunderadverse, in whole or in part, to the interests of the Indemnifying Party or that there may be legal defenses available to the Indemnified Party which are or may be different from, in addition to, or inconsistent with the defenses available to the Indemnifying Party, the Indemnified Party may retain its own counsel in connection with such action or claim, and shall continue to be indemnified by the Indemnifying party for any legal or other expenses reasonably incurred in connection with such demand, claim or lawsuit as set forth herein.
f. The rights j. Notwithstanding the forgoing, no Indemnifying Party, in regard to any such demand, claim or lawsuit shall, without the written consent of indemnification provided in this section the Indemnified Party (which shall not be exclusive unreasonably withheld), consent to an entry of any judgment of, pay, compromise or affect settle any other rights such demand, claim or lawsuit that does not include as an unconditional term the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in relation to which the Indemnified Party has indemnity rights against the Indemnifying Party, as set forth herein. The Indemnified Party shall not, without the written consent of the Indemnifying Party, consent to an entry of any person judgment of, pay, compromise or settle such demand, claim or lawsuit as to which the Indemnifying Party has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party has an obligation to provide indemnification to the Indemnified Party in respect thereof provided, however, that the Indemnified Party shall have the right to consent to the entry of a judgment of, pay, settle or compromise any such demand, claim or lawsuit without the consent of the Indemnifying Party if the Indemnified Party shall waive any claim for the indemnity therefore and hereunder, unless such consent of the Indemnifying Party is unreasonably withheld.
k. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with any claim, action or suit as to which the Indemnified Party believes it is entitled to indemnification and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be entitled reasonably requested by contract or otherwise by lawthe Indemnifying Party in connection therewith.
1. The foregoing agreements of indemnity shall be in addition to, and shall not protect in no respect limit or restrict, any person against any liability other remedies which may be available to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementan indemnified party.
Appears in 1 contract
Samples: Portfolio Advisory & Rate Risk Analysis Agreement (Harrington West Financial Group Inc/Ca)
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees, agents, control persons or affiliates of any thereof, shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 36(b)(3) of the 0000 Xxx) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.
(b) Adviser and Sub-Adviser agree to defend, indemnify and hold harmless the other and each of their respective officers, directors, members, employees and/or agents from any and all claims, losses, damages, liabilities, costs and/or expenses directly resulting from the other’s violation of any of the terms of this Agreement, absent except to the extent such claims, losses, damages, liabilities, costs and/or expenses result in whole or in part from the breach, gross negligence, or misconduct of the party seeking indemnification hereunder. Adviser and Sub-Adviser’s obligations under this paragraph shall survive the termination of this Agreement.
(c) Any person, even though also a director, officer, employee, shareholder, member or agent of the Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s material breach of this Agreement duties hereunder), to be rendering such services to or acting solely for the willful misconductTrust and not as a director, bad faithofficer, gross negligence employee, shareholder, member or reckless disregard of the obligations or duties hereunder on the part agent of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, one under the Sub-Adviser shall not be liable for any act Adviser’s control or omission in the course ofdirection, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided even though paid by the Sub-Adviser; .
(iid) the bad faith, willful misconduct or gross negligence by the Adviser agrees to provide Sub-Adviser in with indemnification rights of the performance of its duties under this Agreement same scope and on the same terms as Adviser receives from the Trust or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Fund, as amended from time to time. Adviser further agrees to promptly provide Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 with a copy of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement terms of such Proceeding; provided thatindemnification rights, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from along with any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereundermodifications or amendments thereto.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (Mutual Fund & Variable Insurance Trust)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities ActFund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs due to the Sub-Adviser’s willful misconduct, bad faith, fraud, reckless disregard, or gross negligence; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and expenses other expenses) due to (includingi) any breach by the Fund or the Trust of a Fund representation or warranty made herein, without limitationor (ii) any willful misconduct, reasonable attorneys’ bad faith, fraud, reckless disregard or gross negligence of the Fund or the Trust in the performance of any of their duties or obligations hereunder.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and accountants’ fees hold harmless the Sub-Adviser and disbursementsits managers, officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the “LossesSub-Adviser Indemnitees”) insofar as such Losses against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or actions with respect theretootherwise, due to the Investment Adviser’s willful misconduct, bad faith, fraud, reckless disregard, or gross negligence; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) arise out of or are based upon due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; of a representation or warranty made herein, or (ii) the any willful misconduct, bad faith, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of their duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its duties failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust’s property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 E. No Trustee or shareholder of the Securities ActTrust shall be personally liable for any debts, from and against any Losses suffered liabilities, obligations or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or other federal securities laws, neither the Sub-Adviser nor any of its officers, directors, employees or agents shall be subject to any liability to the Manager, the Trust, the Series or any shareholder of the Series for any error of judgment, any mistake of law or any loss arising out of any investment or other act or omission in the course of, connected with, or arising out of any service to be rendered under this Agreement, absent except by reason of willful misfeasance, bad faith or gross negligence in the performance of the Sub-Adviser’s material breach Advisers duties or by reason of reckless disregard by the Sub-Adviser of its obligations and duties, including the Sub-Advisers duties relating to the diligence and analyses undertaken in connection with investments made by the Series.
b. The Trust agrees to indemnify out of the assets of the Series each of the Sub-Adviser and all of its officers, directors and employees (each such entity or person hereinafter referred to as a Covered Person) against all liabilities and expenses, including but not limited to amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by any such Covered Person in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which such Covered Person may be or may have been involved as a party or otherwise or with which such Covered Person may be or may have been threatened, while in office or thereafter by reason of any investment or other alleged act or omission in the course of, connected with or arising out of any service to be rendered under this Agreement Agreement, except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any such action, suit or other proceeding not to have acted in good faith in the reasonable belief that such Covered Persons action was in the best interests of the Series, and except that no Covered Person shall be indemnified against any liability to which such Covered Person would otherwise be subject by reason of willful misconductmisfeasance, bad faith, gross negligence or reckless disregard of the Covered Persons obligations and duties, including the Covered Persons duties relating to the diligence and analyses undertaken in connection with investments made by the Series. Expenses, including counsel fees so incurred by any such Covered Person, may be paid from time to time by the Trust in advance of the final disposition of any such action, suit or duties hereunder proceeding on the part condition that the amounts so paid shall be repaid to the Trust if it is ultimately determined that indemnification of the Sub-Advisersuch expenses is not authorized under this Section 7.b. c. As to any matter disposed of by a compromise payment by any such Covered Person referred to in Section 7.b. above, pursuant to a consent decree or its officersotherwise, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable no such indemnification either for any act or omission in the course of, or connected with, rendering services hereunder said payment or for any losses that may other expenses shall be sustained provided unless such compromise shall be approved as in the purchasebest interests of the Series, holding or sale of any position.
b. The Sub-Adviser acknowledges after notice that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trustinvolved such indemnification, as amended. The Sub-Adviser agrees that any (i) by a disinterested majority of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series trustees of the Trust then in office or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) by a majority of the bad faith, willful misconduct or gross negligence by disinterested trustees of the Sub-Adviser Trust then in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderoffice; or (iii) by any material breach of this Agreement disinterested person or persons to whom the question may be referred by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 trustees of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderTrust; or (iiiiv) any material breach by vote of this Agreement by shareholders of the Sub-Adviser including without limitation Series holding a majority of the Strategyshares entitled to vote thereon, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice exclusive of any actionshares beneficially owned by any interested Covered Person; provided, arbitrationhowever, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall would not protect any person such Covered Person against any liability to which any such person Covered Person would otherwise be subject by reason of willful misconductmisfeasance, bad faith or faith, gross negligence or reckless disregard of the Covered Persons duties or obligations. Approval by the trustees of the Trust pursuant to clause (i) or or persons pursuant to clause (iii) of this Section 7.c. shall not prevent the recovery from any Covered Person of any amount paid as indemnification to such Covered Person in accordance with any of such clauses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the performance reasonable belief that such Covered Persons action was in the best interests of such person’s duties the Series or to have been liable by reason of its willful misfeasance, bad faith, gross negligence or reckless disregard of such person’s obligations and the Covered Persons duties under this Agreementor obligations.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this AgreementA. Company agrees to be liable for, absent the Sub-Adviser’s material breach of this Agreement or the willful misconductindemnify and hold harmless Mxxxxx Sxxxxxx, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its Mxxxxx Xxxxxxx’x officers, directors, partners, agents, directors and employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for from any losses that and costs they may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses incur (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsexpenses) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon arising from (i) any actual material misstatement or omission in of Company’s actions, and the Fundactions of Company’s Registration Statementemployees, any proxy statementagents and affiliates, or communication to current or prospective investors in the Fund relating to disclosure provided transactions in Shares, including but not limited to any statements or representations contained in any sales or other material relating to the Adviser Funds it or its agents or affiliates provide to Mxxxxx Sxxxxxx or any other statements or representations, written or oral, concerning the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form Funds that Company, its employees, agents and context as provided by the Sub-Adviserits affiliates make to Mxxxxx Sxxxxxx; (ii) the bad faith, willful misconduct any material misstatement in or gross negligence by the Sub-Adviser in the performance omission of its duties under this Agreement or the reckless disregard of its obligations or duties hereundera material fact from a Fund’s Prospectus; or (iii) any failure of any Fund or its Shares to be properly registered and available for sale under any applicable federal and state law and regulation; (iv) any of its actions, or the actions of its affiliates or agents, relating to the processing of orders and the servicing of shareholder accounts; and (v) its material breach of this Agreement or its violation of law, except to the extent such losses are caused by the Sub-Adviser including without limitation gross negligence, bad faith or willful misconduct or reckless disregard of obligation or duties of Mxxxxx Sxxxxxx under this Agreement. Notwithstanding anything to the Strategy, Governing Documents or Procedures or any representation or warranty contained contrary in this Agreement, Company shall not be liable for any special, indirect, punitive or consequential damages.
d. B. The Adviser Trust agrees to be liable for, indemnify and the Fund shall indemnify the Sub-Adviser and each of its partnershold harmless Mxxxxx Sxxxxxx, Mxxxxx Xxxxxxx’x officers, directors and employees from any losses and agentscosts they may incur (including, without limitation, reasonable attorneys’ fees and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result expenses) arising from (i) any actual material misstatement in or omission in the of a material fact from a Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-AdviserProspectus; (ii) the bad faith, willful misconduct any failure of any Fund or gross negligence by the Sub-Adviser in the performance of its duties Shares to be properly registered and available for sale under this Agreement or the reckless disregard of its obligations or duties hereunderany applicable federal and state law and regulation; or (iii) any of its actions, or the actions of its affiliates or agents, relating to the processing of orders and the servicing of shareholder accounts; and (iv) its material breach of this Agreement or its violation of law, except to the extent such losses are caused by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductgross negligence, bad faith or gross negligence in the performance of such person’s duties willful misconduct or by reason of its reckless disregard of such person’s obligations and obligation or duties of Mxxxxx Sxxxxxx under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Trust shall not be liable for any special, indirect, punitive or consequential damages.
C. Xxxxxx Sxxxxxx agrees to be liable for, indemnify and hold harmless Company, Company’s officers, directors and employees from any losses and costs they may incur (including, without limitation, reasonable attorneys’ fees and expenses) arising from: (i) any statements or representations that Mxxxxx Sxxxxxx or its employees and agents make concerning the Funds that are inconsistent with either the pertinent Funds’ then-current Prospectus or any other material Company has provided or any other statements or representations, written or oral, Company has made to Mxxxxx Sxxxxxx relating to the Funds; (ii) any of Mxxxxx Xxxxxxx’x actions relating to the processing of orders and the servicing of shareholder accounts; and (iii) Mxxxxx Xxxxxxx’x material breach of this Agreement or its violation of law, except to the extent such losses are caused by the gross negligence, bad faith or willful misconduct or reckless disregard of obligation or duties of Company under this Agreement. Notwithstanding anything to the contrary in this Agreement, Mxxxxx Sxxxxxx shall not be liable for any special, indirect, punitive or consequential damages.
D. The provisions of this Section shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Mutual Fund Dealer Agreement (Tributary Funds, Inc.)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent (a) Unless caused by the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard willful misconduct of the obligations or duties hereunder on the part any of the Sub-AdviserLandlord, or its officersagents, directors, partners, agents, officers and employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities ActLandlord Protected Parties”), againstand subject to the mutual release and waiver of subrogation contained herein, Xxxxxx agrees to protect, indemnify and hold them save the Landlord Protected Parties harmless fromfrom and against all liabilities, any and all lossesobligations, claims, damages, liabilitiespenalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees and accountantsexpenses) imposed upon or incurred by or asserted against the Landlord Protected Parties, or any of them, by reason of (a) any failure on the part of Tenant to perform or comply with any of the terms of this Lease; or (b) performance of any labor or services or the furnishing of any materials or any property in respect to the Premises or any part thereof; provided, however, that notwithstanding anything to the contrary contained in this Lease, in no event shall Tenant have any liability hereunder for consequential damages or indirect losses. In case any action, suit or proceeding is brought against Landlord by reason of any such occurrence, Tenant will, at Xxxxxx’s expense, by counsel reasonably approved by Landlord, resist and defend such action, suit or proceeding, or cause the same to be resisted and defended.
(b) Unless caused by the negligence or willful misconduct of any of Tenant, its agents, directors, officers and employees (“Tenant Protected Parties”), and subject to the mutual release and waiver of subrogation contained herein, Landlord agrees to protect, indemnify and save the Tenant Protected Parties, harmless from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursementsexpenses) imposed upon or incurred by or asserted against the Tenant Protected Parties, or any of them, by reason of (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (ia) any actual material misstatement failure on the part of Landlord to perform or omission in comply with any of the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance terms of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderLease; or (iiib) performance of any material breach labor or services or the furnishing of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures any materials or any representation property in respect to the Building or warranty any part thereof; provided, however, that notwithstanding anything to the contrary contained in this Agreement.
d. The Adviser and the Fund Lease, in no event shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against Landlord have any Losses suffered liability hereunder for consequential damages or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of indirect losses. In case any action, arbitrationsuit or proceeding is brought against Tenant by reason of any such occurrence, claimLandlord will, demandat Xxxxxxxx’s expense, disputeby counsel reasonably approved by Xxxxxx, investigationresist and defend such action, lawsuit suit or other proceeding (each a “Proceeding”) by a party seeking proceeding, or cause the same to be indemnified under Section 9(cresisted and defended.
(c) Except in the case of Landlord’s negligence or 9(d) (the “Indemnified Party”)willful misconduct, the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party Landlord shall not relieve be responsible or liable to Tenant, or to those claiming by, through or under Tenant, for any loss or damage caused to Tenant, its agents, contractors, employees or invitees or their property from the Indemnifying Party breaking, bursting, stoppage or leaking of water, gas, sewer or steam pipes, or electrical cable or wires, or for any damage or loss of property in the Premises from any indemnification liability which it may have to cause whatever.
(d) The provisions of this Section shall survive the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under termination of this section for any settlement of any Proceeding entered into without its consent Lease with respect to which indemnity may be sought hereunderany claims or liability accruing prior to such termination.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Lease Agreement
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or (a) HGI shall indemnify and hold Administrator and its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, from any and all claims, actions, suits, losses, claimscosts, damages, liabilitiesand expenses, costs and including reasonable expenses (includingfor counsel, without limitationincurred by it in connection with its acceptance of this Agreement, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement action or omission in the Fund’s Registration Statementby it or its employees, any proxy statementagents, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties hereunder to HGI, or as a result of acting upon any instruction believed by it to have been executed by a duly authorized agent of HGI or as a result of acting upon information provided by HGI in form and under this Agreement or the reckless disregard of its obligations or duties hereunderpolicies agreed to by Administrator and HGI; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategyprovided, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnershowever, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in to the Fund’s Registration Statementextent such claims, any proxy statementactions, suits, losses, costs, damages, or communication expenses relate solely to current one or prospective investors in more Funds, such indemnification shall be only out of the assets of that Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Advisergroup of Funds; (ii) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give HGI prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, HGI shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
(b) Administrator shall indemnify and hold harmless HGI from and against any and all claims, demands, expenses, and liabilities which HGI may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of HGI, or its other agents or contractors, and (ii) HGI shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of HGI. In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent Neither the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsServicer, the Sub-Adviser shall not be liable for any act or omission in Special Servicer, the course ofTrustee, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that Note Administrator nor their Affiliates nor any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesmanagers, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersdirectors, officers, employees and agentsor agents thereof shall be under any liability to either the USActive 56231551.8.docx Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered in good faith pursuant to or sustained in connection with this Agreement, provided or for errors in judgment; provided, however, that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and provision shall not protect the Servicer, the Special Servicer, the Note Administrator or the Trustee or any person such Person against any liability to which any such person would otherwise be subject imposed on the Servicer, the Special Servicer, the Note Administrator or the Trustee or any such Person, respectively, by reason of the willful misconductmisfeasance, bad faith or gross negligence in the performance of the Servicer’s, the Special Servicer’s, the Note Administrator’s or the Trustee’s, respectively, duties hereunder. The Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, and any partners, shareholders, members, managers, officers, directors, employees, agents, accountants and attorneys thereof may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, and any partners, shareholders, members, managers, officers, directors, employees, agents, accountants and attorneys thereof shall be indemnified and held harmless by the Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, and including any fees or expenses related to the enforcement of this indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator or the Trustee authorized, requested or advised the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, to perform pursuant to this Agreement, as such person’s duties are incurred, except for any loss, liability or expense incurred by reason of its reckless disregard the willful misfeasance, bad faith, or negligence in the performance of the duties of the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s or the Trustee’s, as the case may be, representations and warranties set forth in Section 7.01. Any such personindemnification shall be payable only pursuant to the Priority of Payments under the Indenture and not from any amounts on deposit in the Collection Account. In the event that the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Mortgage Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer (or the Collateral Manager acting on behalf of the Issuer) shall promptly remit such overcharge to the related Obligor or other Obligors after the Issuer’s obligations receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, by reason of (i) the willful misfeasance, bad faith or negligence in the performance of the duties under this Agreementof the Servicer, the Special Servicer, the Note Administrator or the Trustee, as applicable, hereunder or (ii) a breach of the representations and warranties of the Servicer or the Special Servicer set forth in Section 7.01.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees or agents shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 36(b)(3) of the 0000 Xxx) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.
(b) Adviser and Sub-Adviser agree to defend, absent indemnify and hold harmless the other and each of their respective officers, directors, members, employees and/or agents from any and all claims, losses, damages, liabilities, costs and/or expenses directly resulting from the other’s violation of any of the terms of this Agreement. Adviser and Sub-Adviser’s obligations under this paragraph shall survive the termination of this Agreement.
(c) Any person, even though also a director, officer, employee, shareholder, member or agent of the Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s material breach of this Agreement duties hereunder), to be rendering such services to or acting solely for the willful misconductTrust and not as a director, bad faithofficer, gross negligence employee, shareholder, member or reckless disregard of the obligations or duties hereunder on the part agent of the Sub-Adviser, or its officersone under the Sub- Adviser’s control or direction, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided even though paid by the Sub-Adviser; .
(iid) As used in this Section 10, the bad faith, willful misconduct or gross negligence by term the “Sub-Adviser in the performance Adviser” shall include any affiliates of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its the partners, officersshareholders, directors, officers and employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.such
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the (a) The Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder error of judgment or for any losses that may be sustained in loss suffered by the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund Portfolio or the Adviser within in connection with the meaning performance of Section 15 of the Securities Act of 1933its obligations under this Agreement, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon except a loss resulting from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; ’s material breach of any covenant, obligation, representation or warranty under this Agreement, (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith’s willful misfeasance, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful intentional misconduct, bad faith or gross negligence in the performance of such person’s its duties or by reason of its and/or reckless disregard of such person’s its obligations and duties under this Agreement, (iii) the Sub-Adviser’s violation of applicable law or (iv) the Sub-Adviser’s breach of fiduciary duty with respect to the receipt of compensation for services under the Agreement. As used in this Section, the term “Sub-Adviser” shall include directors, officers and employees of the Sub-Adviser as well as the entity itself. Nothing herein shall constitute a waiver or limitation of any right of any person under the 1940 Act or under the provisions of other federal or state securities laws which cannot be waived or modified hereby.
(b) The Sub-Adviser agrees, to the fullest extent permitted by law, to hold harmless and indemnify the Adviser, the Company and their respective affiliates, directors, officers, shareholders, employees or agents (each, an “Indemnified Party”), and defend each Indemnified Party (with counsel of the Indemnified Parties’ choosing) from and against any and all claims, losses, suits, liabilities, obligations, costs, direct damages, judgments, penalties and expenses of any kind (including attorneys’ fees and costs) suffered by any Indemnified Party resulting from, arising out of, or in connection with (i) the Sub-Adviser’s material breach of any covenant, obligation, representation or warranty under this Agreement, (ii) the Sub-Adviser’s willful misfeasance, intentional misconduct, bad faith or gross negligence in the performance of its duties and/or reckless disregard of its obligations and duties under this Agreement, (iii) Sub- Adviser’s violation of applicable law, (iv) any third party claim that the services provided under this Agreement by Sub-Adviser violate or infringe the copyright rights, trade secret rights, trademark rights, patent rights or other proprietary rights of the third party, (v) any third party action or claim against the Sub-Adviser unrelated to this Agreement or Sub-Adviser’s services hereunder, including, but not limited to, actions or claims against the Sub-Adviser under Section 36(b) of the Investment Company Act resulting in the subpoena of an Indemnified Party and/or obligations related to providing testimony, attending depositions or responding to requests for production of materials, and (vi) any untrue statement of a material fact (or an omission of such a statement), related to the Sub-Adviser or the Portfolio, contained in any Registration Statement, Prospectus, or Statement of Additional Information, or any amendment or supplement thereto, if such statement or omission was made in reliance on Sub-Adviser’s current Form ADV or information provided by the Sub-Adviser to the Adviser (whether the information is furnished by the Sub-Adviser in writing or through obtaining Sub-Adviser’s affirmation or approval of such information) for purposes of inclusion in any of the foregoing documents and filings. The Sub-Adviser’s obligations contained in this Section 8(b) shall survive the termination of this Agreement. Notwithstanding the foregoing, Sub-Adviser shall have no liability for any indirect, incidental, consequential, special, exempliary, or punitive damages, even if Sub-Adviser has been advised of the possibility of such damages. Nothing herein shall be deemed to releive Sub-Adviser of any liability it would otherwise have under applicable laws.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Northwestern Mutual Series Fund Inc)
Liability and Indemnification. a. 7.1 Except as expressly set forth provided in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser a Party shall not be liable to the other Party in contract, tort, warranty, strict liability or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages, loss of use, Xxxx of contract, Xxxx of opportunity or loss of profit arising from any act or omission relating to this Agreement.
7.2 SMUNL shall not be responsible to SONL for or in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale respect of any positionsuits, proceedings, claims or demands of third parties consequent upon anything done or omitted to be done by the Personnel.
b. 7.3 The Subaggregate liability of SMUNL (whether based on tort, breach of contract or otherwise) arising out of or in connection with its performance or non-Adviser acknowledges that it has received notice performance of and accepts its obligations under this Agreement shall not exceed: (i) the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any amount of the Fund’s obligations loss or damage to which the liability relates; or (ii) the value of the Personnel Service Fee or the Procurement Service Fee as applicable; whichever is less. SMUNL shall be limited to vicariously liable for the assets negligence and misconduct of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits directors, officers, employees, subcontractors and agents under this Agreement and shareholdersno director, and each personofficer, if anyemployee, who controls the Fund subcontractor or the Adviser within the meaning agent of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), SMUNL shall have any personal liability under this Agreement. This is without prejudice to any rights which SONL may have at law or in equity.
7.4 SONL shall indemnify SMUNL against, and hold them harmless fromSMUNL harmless, at all times, after the Effective Date, from any and all losses, and any and all actions, claims, damages, liabilities, demands and expenses of whatever kind or nature including all related costs and expenses (includingexpenses, without limitationin respect of any loss, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelydamage, “Losses”) insofar as such Losses (personal injury or actions with respect thereto) arise death, in each case arising out of the negligence, default or are based upon (i) wilful misconduct of SONL or any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersdirectors, officers, employees employees, subcontractors and agents.
7.5 SMUNL shall indemnify SONL against, and hold SONL harmless, at all times, after the Effective Date, from any and all losses, and any and all actions, claims, demands and expenses of whatever kind or nature including all related costs and expenses, in respect of any loss, damage, personal injury or death, in each person, if any, who controls the Sub-Adviser within the meaning of Section 15 case arising out of the Securities Actnegligence, from and against default or wilful misconduct of SMUNL or any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategydirectors, Governing Documents or Procedures or any representation or warranty contained in this Agreementofficers, employees, subcontractors and agents.
e. Promptly after receipt 7.6 The Indemnified Party shall promptly notify the Indemnifying Party of notice the assertion or commencement of any action, arbitration, claim, demand, disputeinvestigation, action, suit or other proceedings for which indemnity or defence is or may be sought under this Agreement; provided however, that this notice requirement shall not apply to any claim, demand, investigation, lawsuit action, suit or other legal proceeding (each a “Proceeding”) by a party seeking in which the Parties are adversaries.
7.7 The Indemnifying Party shall be entitled, at its option, to be indemnified under Section 9(c) assume and control the defence of such claim, action, suit or 9(d) (procedure at its own expense with legal advisers of its selection reasonably satisfactory to the “Indemnified Party”), the Indemnified Party willprovided however, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify that the Indemnifying Party shall not relieve the Indemnifying Party from settle or compromise any indemnification liability which it may have to third party claim without the Indemnified Party; provided that 's prior written consent to such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderor compromise.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Administrative Support Contract (Seadrill Partners LLC)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent may otherwise be provided by the Sub-Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other federal securities law, the Sub-Adviser Subadviser shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser or the Trust as a result of any error of judgment or mistake of law by the Subadviser with respect to any Portfolio, or any act or omission by Subadviser in good faith and believed by it to be authorized or within its discretion, rights or powers conferred by this Agreement or in accordance with specific directions or instructions from the course ofAdviser or the officers or trustees of the Adviser, Fund or connected withTrust, rendering services hereunder except that nothing in this Agreement shall operate or for purport to operate in any losses that may be sustained in way to exculpate, waive or limit the purchaseliability of the Subadviser for, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in Subadviser shall indemnify and hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all controlling persons (as described in Section 15 of the Securities Act of 19331933 Act) (collectively, as amended (the “Securities ActAdviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs the 1940 Act, the Advisers Act, or under any other statute, at common law or otherwise arising out of or based on any willful misconduct, bad faith, reckless disregard or gross negligence of the Subadviser in the performance of any of its duties or obligations hereunder.
b. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Adviser and expenses the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (includingincluding legal and other expenses) incurred or suffered by the Subadviser as a result of any error of judgment or mistake of law by the Adviser with respect to any Portfolio, without limitationexcept that nothing in this Agreement shall operate or purport to operate in any way to exculpate, reasonable attorneys’ waive or limit the liability of the Adviser for, and accountants’ fees the Adviser shall indemnify and disbursementshold harmless the Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “LossesSubadviser Indemnitees”) insofar as such Losses against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any actual material misstatement willful misconduct, bad faith, reckless disregard or omission gross negligence of the Adviser in the Fund’s performance of any of its duties or obligations hereunder, (ii) any failure by the Adviser to properly notify the Subadviser of changes to the Registration Statement or any Charter Requirements or Policies and Procedures, (iii) any action or omissions taken by Subadviser in accordance with an instruction or direction provided by Adviser, the Trust or the Board of Trustees of the Trust or in accordance with the terms of the Registration Statement, any proxy statementCharter Documents or Policies and Procedures, or communication to current or prospective investors (iv) any untrue statement of a material fact contained in the Fund relating Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to disclosure provided a Portfolio or the omission to state therein a material fact known to the Adviser which was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon information furnished to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) Trust by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section Subadviser Indemnitee for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderuse therein.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Subadvisory Agreement (Aspiriant Global Equity Trust)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the Investment Company Act or any other federal securities law, neither the Adviser nor any of its officers, members or employees (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Manager or the Trust as a result of any error of judgment or mistake of law or other action taken or omitted by Adviser in good faith exercise of its powers hereunder by the Adviser or its Affiliates with respect to the Portfolio, except that nothing in this AgreementAgreement shall operate or purport to operate in any way to exculpate, absent waive or limit the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard liability of the obligations or duties hereunder on the part of the Sub-Adviser, or its officersAffiliates for, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify and hold harmless the Fund and Trust, the Adviser and each of their respective trusteesManager, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, against, and hold them harmless from, “Manager Indemnitees”) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Manager Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe Investment Company Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) insofar as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon on (i) any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.hereunder or
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the “Securities Act”)collectively, against, and hold them harmless from, "Sub-Adviser Indemnitees") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made in this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement or the reckless disregard of its obligations or duties hereunder; Agreement, or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each a Fund's Prospectus or Statement of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadve1tisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the performance 1940 Act or any other federal securities law, the Investment Adviser and the Sub-Adviser shall each, severally and not jointly, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, "Fund Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser's or the Sub-Adviser's, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its duties obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust's property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit E. No Trustee or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing shareholder of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party Trust shall be personally liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of debts, liabilities, obligations or affect any other rights to which any person may be entitled by contract expenses incurred by, or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties contracted for under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except The Sub-adviser shall only be liable for, and indemnify the Fund, the Adviser, and each of their respective affiliates, agents, control persons, directors, members of the Board, officers, employees and shareholders (the “Adviser Indemnified Parties”) against, and hold them harmless from, any costs, expense, claim, loss, liability, judgment, fine, settlement or damage (including reasonable legal and other expenses) (collectively, “Losses”) arising out of any claim, demands, actions, suits or proceedings (civil, criminal, administrative or investigative) asserted or threatened to be asserted by any third party (collectively, “Proceedings”) in so far as expressly set forth such Loss (or actions with respect thereto) (i) arises out of or is based upon or in this Agreement, absent connection with any material misstatement or omission of a material fact in information regarding the Sub-Adviser’s adviser furnished in writing to the Adviser by the Sub- adviser; (ii) arises out of or is based upon any material breach of any of the representations, warranties, covenants or obligations of the Sub-adviser with respect to this Agreement Agreement; or (iii) arises out of or is based upon the willful misconductmisfeasance, bad faith, gross negligence negligence, or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviseradviser in the performance of its duties under this Agreement (collectively, or its “Disabling Conduct”).
b. Except for such Disabling Conduct, the Fund (to the extent permitted by applicable law) and the Adviser shall indemnify the Sub-adviser and the Sub-adviser’s officers, directors, partners, agents, employees and employees, controlling persons, shareholders and any other person or entity affiliated with the Sub-Adviser shall not be liable for adviser (collectively, the “Sub-adviser Indemnified Parties”) against, and hold such Sub-adviser Indemnified Parties harmless from, any act and all Losses (or omission in actions with respect thereto) from any Proceedings arising from the course of, Sub-adviser’s providing services under this Agreement or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionsecurities of the Fund.
b. c. The Sub-Adviser adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trustits limited liability company agreement, as amended. The Sub-Adviser adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser adviser shall not seek satisfaction of any such obligation from the shareholders members of the Fund nor from any other series member of the Trust or any Trustees Board or officer, employee or agent of the Fund or other series of the TrustFund.
c. The Sub-Adviser shall indemnify d. In the Fund and the Adviser and each event that any party hereto is or becomes a party to any action or proceeding in respect of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended which it may be entitled to seek indemnification hereunder (the “Securities Actindemnitee”), againstthe indemnitee shall promptly notify any other party from whom the indemnitee may seek indemnification hereunder (“indemnitor”). The indemnitor shall be entitled to participate in any such suit or proceeding and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to the indemnitee. Notwithstanding the preceding sentence, the indemnitee shall be entitled to employ counsel separate from the indemnitor’s counsel and hold them harmless fromfrom any other party in such action if the indemnitee determines in good faith that a conflict of interest exists which makes counsel chosen by the indemnitor not advisable or if the indemnitee reasonably determines that the indemnitor’s assumption of the defense does not adequately represent the indemnitee’s interest. In such event the indemnitor will pay the fees and disbursements of such separate counsel, any and all losses, claims, damages, liabilities, costs but in no event shall the indemnitor be liable for the fees and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (of more than one counsel for the indemnitee in connection with any one action or separate but similar or related actions with respect thereto) arise in the same jurisdiction arising out of the same general allegations or are based circumstances.
e. The termination of a Proceeding by settlement or upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementa plea of nolo contendere, or communication its equivalent, shall not, of itself, create a presumption that an indemnitee’s acts, omissions or alleged acts or omissions were primarily attributable to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, gross negligence or willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementsuch indemnitee.
d. f. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party indemnitor shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section hereunder for any settlement of any Proceeding entered into action or claim effected without its written consent with respect to which indemnity may be sought hereunderthereto.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (ASGI Aurora Opportunities Fund, LLC)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, against, and hold them harmless from, “Sub-Adviser Indemnitees”) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made in this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement or the reckless disregard of its obligations or duties hereunder; Agreement, or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration StatementProspectus or Statement of Additional Information, any proxy statementmaterials, advertisements or communication to current or prospective investors sales literature, if such statement was made in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Adviser and the Sub-Adviser shall each, jointly and severally, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Adviser’s or the Sub-Adviser’s action or inaction or based on this Agreement; provided however, the Adviser and Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund or a Trust representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or the Trust in the performance of any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust’s property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing E. No Trustee of the commencement Trust or shareholder of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party Fund shall be personally liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of debts, liabilities, obligations or affect any other rights to which any person may be entitled by contract expenses incurred by, or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties contracted for under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (ALPS Series Trust)
Liability and Indemnification. a. (a) Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or for the willful misconduct, bad faith, misconduct or gross negligence or reckless disregard of HRM, FRONTIER agrees that HRM is not responsible for any damage to FRONTIER assets for any losses, claims, charges, damages and expenses whatsoever suffered by FRONTIER on account of the obligations actions of HRM its agents or duties hereunder on the part of the Sub-Adviseremployees working in, under, over, along, upon and across its streets and roads or its other HRM owned property.
(b) FRONTIER covenants and agrees to indemnify and save harmless HRM’s agents, officers, directors, partners, agentselected officials, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation assigns from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damagesincluding any claim for injurious affection, liabilitiescharges, costs damages and expenses (includingwhich HRM may at any time bear, without limitationsustain or suffer, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementby reason, or communication to current on account of the placement, installation, relocation, maintenance or prospective investors in the Fund relating to disclosure provided to the Adviser use of FRONTIER equipment in, on, under, over, along or the Fund by the Sub-Adviser for inclusion in such documents across a street or road, except where such disclosure was actually included in such documents in the form and context losses or claims occur as provided by the Sub-Adviser; (ii) the bad faith, a result of HRM’s willful misconduct or gross negligence negligence.
(c) FRONTIER will, upon demand and at its own sole risk and expense, defend any and all suits, actions or other legal proceedings to which section 13(b) applies, which may be brought or instituted by third parties against HRM on any such claim, demand or cause of action, and will pay and satisfy any judgment or decree which may be rendered against HRM for any all legal expenses incurred in connection therewith.
(d) FRONTIER’s obligation to indemnify and save harmless HRM in this section 13 shall survive the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach termination of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or Agreement.
(e) Notwithstanding any representation or warranty provision contained in this Agreement.
d. The Adviser , HRM and the Fund FRONTIER shall indemnify the Sub-Adviser and not be liable to each of its partnersother in any way for indirect, officerspunitive, employees and agentsreliance or consequential losses or damages, and each personincluding but not limited to damages for economic loss, if anyhowever caused or contributed to, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Municipal Access Agreement
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the (a) The Sub-Adviser shall not be liable for any act or omission in the course oferror of judgment, or connected withmistake of law, rendering services hereunder or for any losses that may be sustained in loss suffered by the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund Funds or the Adviser within in connection with the meaning performance of Section 15 of the Securities Act of 1933its obligations under this Agreement, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon except a loss resulting from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; ’s material breach of any covenant, obligation, representation or warranty under this Agreement, (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith’s willful misfeasance, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful intentional misconduct, bad faith or gross negligence in the performance of such person’s its duties or by reason of its and/or reckless disregard of such person’s its obligations and duties under this Agreement, (iii) the Sub-Adviser’s violation of applicable law in performance of its duties under this Agreement, or (iv) the Sub-Adviser’s breach of fiduciary duty with respect to the receipt of compensation for services under the Agreement pursuant to a final judgment by a competent court of law. As used in this Section, the term “Sub-Adviser” shall include directors, officers and employees of the Sub-Adviser as well as the entity itself. The Sub-Adviser shall have no liability with respect to the actions or inaction of any other investment adviser to the Funds nor any liability whatsoever for any investment losses incurred by the Funds, or arising from transactions by the Funds, prior to the date on which the Sub-Adviser assumes responsibility for the management of the Allocated Portion of such Funds. Nothing herein shall constitute a waiver or limitation of any right of any person under the 1940 Act or under the provisions of other federal or state securities laws which cannot be waived or modified hereby.
(b) The Sub-Adviser agrees, to the fullest extent permitted by law, to hold harmless and indemnify the Adviser, the Trust and their respective affiliates, directors, trustees, officers, shareholders, employees or agents (each, an “Indemnified Party”), and defend each Indemnified Party (with counsel of the Indemnified Parties’ choosing) from and against any and all claims, losses, suits, liabilities, obligations, costs, damages, judgments, penalties and expenses of any kind (including attorneys’ fees and costs) suffered by any Indemnified Party resulting from, arising out of, or in connection with (i) the Sub-Adviser’s material breach of any covenant, obligation, representation or warranty under this Agreement, (ii) the Sub-Adviser’s willful misfeasance, intentional misconduct, bad faith or gross negligence in the performance of its duties and/or reckless disregard of its obligations and duties under this Agreement, (iii) Sub-Adviser’s violation of applicable law in performance of its duties under this Agreement, (iv) any third party claim that the services provided under this Agreement by Sub-Adviser violate or infringe the copyright rights, trade secret rights, trademark rights, patent rights or other proprietary rights of the third party, and (v) any untrue statement of a material fact (or an omission of such a statement), related to the Sub-Adviser, contained in any Registration Statement, Prospectus, or Statement of Additional Information, or any amendment or supplement thereto, if such statement or omission was made in reliance on Sub-Adviser’s current Form ADV or information provided by the Sub-Adviser to the Adviser (whether the information is furnished by the Sub-Adviser in writing or through obtaining Sub-Adviser’s affirmation or approval of such information) for purposes of inclusion in any of the foregoing documents and filings. The Sub-Adviser’s obligations contained in this Section 8(b) shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Trust for Professional Managers)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the (a) The Sub-Adviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course ofAdviser, the Fund or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of their affiliates as a result of any position.
b. The error of judgment or mistake of law by the Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon with respect to the Fund’s , except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability set forth in of the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund for, and that the Sub-Adviser shall not seek satisfaction of any such obligation from indemnify and hold harmless the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities "1933 Act”")) (collectively, against, and hold them harmless from, the "Adviser Indemnitees") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnities may become subject under the 1933 Act, costs and expenses (includingthe 1940 Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) insofar as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon on (ia) the Sub-Adviser's causing the Fund to be in violation of any actual material misstatement applicable federal or omission state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement's Prospectus or Statement of Additional Information or any written policies, any proxy statementprocedures, guidelines or communication instructions provided in writing to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in by the form and context as provided by Trustees or the Adviser, (b) the Sub-Adviser; 's causing the Fund to fail to satisfy the diversification requirements or source of income requirements of Subchapter M of the Code, or (iic) the Sub-Adviser's willful misfeasance, bad faith, willful misconduct faith or gross negligence by the Sub-Adviser generally in the performance of its duties under this Agreement hereunder or the its reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
(b) Notwithstanding the foregoing, nothing herein shall in any way be deemed to waive or limit any rights that the Fund may have under the federal securities laws.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Pioneer Global Value Fund)
Liability and Indemnification. a. Except as expressly set forth in (a) Notwithstanding any other provisions of this Agreement, absent the Sub-Adviser’s material breach of this Agreement whether express or the willful misconductimplied, bad faithor any obligation or duty at law or in equity, gross negligence or reckless disregard none of the obligations or duties hereunder on the part of the Sub-AdviserMembers, Manager, or its any officers, directors, stockholders, partners, agentsemployees, employees and controlling personsaffiliates, the Sub-Adviser shall not be liable for any act representatives or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale agents of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of foregoing, nor any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee employee, representative or agent of the Fund Company (individually, a "Covered Person" and, collectively, the "Covered Persons") shall be liable, responsible or accountable, in damages or otherwise, to the Company or any other series person for any act performed by or omitted by a Covered Person within the scope of the Trustauthority conferred on the Covered Person by this Agreement, except with respect to any matter as to which Covered Person shall have been adjudicated in any proceeding to have engaged in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. No Covered Person shall be liable, responsible or accountable, in damages or otherwise, to the Company or any other person for any loss suffered by the Company that arises out of any action or inaction of any Covered Person, if such Covered Person in its reasonable good faith determines that such course of conduct was in the best interest of the Company, and such course of conduct did not constitute gross negligence or willful misconduct of such Managers.
c. The Sub-Adviser (b) To the fullest extent permitted by law, the Company shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, each Covered Person from and against any and all losses, claims, damagesdemands, liabilities, costs expenses, judgments, fines, settlements and expenses other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative (including"Claims"), without limitationin which the Covered Person may be involved, reasonable attorneys’ and accountants’ fees and disbursementsor threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 12(b) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Claim with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided such Covered Person has engaged in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by lawfraud, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or part thereof) (A) was brought to enforce such Covered Person's rights to indemnification hereunder or (B) was authorized or consented to by the Managing Member. Expenses incurred by a Covered Person in defending any Claim shall be paid by the performance Company in advance of the final disposition of such person’s duties Claim upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company as authorized by this Section 12(b).
(c) In discharging its duties, each Covered Person shall be fully protected in relying in good faith upon the records required to be maintained under the Act and upon such information, opinions, reports or statements by any of the Company's agents, or by reason any other person, as to matters the Covered Person reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of its reckless disregard the Covered Person, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, or losses of the Company or any other facts pertinent to the existence and amount of assets from which distributions to the Members might properly be paid.
(d) Any repeal or modification of this Section 12 by the Members shall not adversely affect any rights of such person’s obligations Covered Person pursuant to this Section 12, including the right to indemnification and duties under this Agreementto the advancement of expenses of a Covered Person existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Samples: Secured Subordinated Promissory Note (Monterey Capital Acquisition Corp)
Liability and Indemnification. a. Except as expressly set forth in this AgreementGreensteam shall be solely responsible for all materials, absent the Sub-Adviser’s material breach equipment, and services necessary for construction, operation, Installation, maintenance, and removal of this Agreement each Unit and Project hereunder. Greensteam shall be solely responsible for tools, equipment and other property owned, rented or the willful misconduct, bad faith, gross negligence leased by Greensteam or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserany subcontractor, or employee of either. To the maximum extent permitted by applicable law, Greensteam shall defend, indemnify, and hold harmless Aera, its officersparents, member companies, Affiliates, and subsidiary companies, and directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersmanagers, officers, employees, and agents and shareholdersof such companies, against any loss, damage, claim, suit, liability, judgment, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses expense (including, without limitationbut not limited to, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyother costs of litigation), “Losses”) insofar as such Losses (or actions with respect thereto) arise and any fines, penalties, and assessments arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementinjury, any proxy statementdisease, or communication death of any Persons (including, but not limited to, Greensteam’s employees) or damage to current or prospective investors loss of any property (including, but not limited to, Aera’s existing facilities), or violation of the applicable law of any governmental authority having jurisdiction, resulting from or in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under connection with this Program Agreement or the reckless disregard performance or nonperformance of Work associated with any Project under this Program Agreement by Greensteam, its obligations agents or duties hereunder; subcontractors (including, but not limited to, employment decisions or (iii) any material breach employee relations practices or policies of Greensteam, its agents or subcontractors, made or instituted in connection with performance of this Agreement Program Agreement), even though caused by the Sub-Adviser including without limitation the Strategyconcurrent and/or contributory negligence (whether active or passive or of any kind or description) or fault of a party indemnified, Governing Documents subject Notwithstanding any other provision herein, Greensteam shall not be responsible or Procedures liable in any way, or obligated to tender a defense for, any environmental claim arising out of Greensteam's testing for, exposure or discovery of, Hazardous Materials (under Section 2.2 hereinabove or otherwise), or any representation other environmental condition, which were present at a Site prior to Greensteam's first occupation of such Site. In the event of such claim, Aera shall defend any such claim or warranty contained in this Agreement.
d. The Adviser suit against Greensteam or its parents, affiliates or subsidiary companies and the Fund shall indemnify the Sub-Adviser and each of its partnersdirectors, managers, officers, employees and agentsagents of such companies. If after Aera has defended any such suit or claim and paid any resulting judgement, and each personit is determined at an arbitration conducted pursuant to Section 15.20 hereunder that the damage was caused by the negligence or willful misconduct of a party indemnified, if any, who controls the Sub-Adviser within the meaning of Section 15 then Greensteam shall reimburse Aera for Greensteam’s allocable share of the Securities Actjudgment. Notwithstanding any other provision herein, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section Aera shall not be exclusive responsible or liable in any way for the condition, alteration or failure of any soils or affect geologic structures in, under, adjacent to or surrounding the Site or Route as a result of any other rights past, present or future activity on Aera’s Premises, including but not limited to subsidence resulting from such activity. Greensteam agrees that any claim by Aera for defense and indemnity which any person Greensteam disputes may be entitled by contract brought and determined in the same action, although not required, as the underlying judicial claim. Greensteam expressly waives any legal right that exists to delay the determination of Greensteam’s indemnity and defense obligations to Aera until the underlying claim is finally determined. In no event shall either Party be liable to the other for indirect or consequential damages, including damages for loss of use, revenue or profit, operating costs and facility downtime, or other similar business interruptions, arising directly or indirectly from this Program Agreement or any Site-Specific Agreement. The limitations and exclusions of liability set forth herein shall apply regardless of fault, breach of contract, tort, strict liability or otherwise of a Party. With the exception of environmental claims and suits as detailed above, Greensteam shall promptly tender to Greensteam’s insurance carrier(s), for defense and indemnity of both Greensteam and Aera, any claim mentioned in this Article 9. The Parties expect and desire that such indemnity and defense will be accepted by lawthe insurance carrier(s), and that all such claims will be finally judicially resolved within the limits of insurance stated in Article 10 hereinbelow, with apportionment of liability consistent with such final judicial resolution, in which case no subsequent arbitration between the Parties as described in the second paragraph of this Article 9 will be necessary nor shall any be pursued. These expectations and desires notwithstanding, the obligations, indemnities, and liabilities assumed by Greensteam under this Article 9 shall not be limited by any provisions or limits of insurance required by Article 10 below, and shall not protect survive the termination of this Program Agreement. If it is judicially determined that any person against of the indemnity obligations (which Greensteam agrees shall be supported by insurance) under this Article 9 or insurance obligations under Article 10 below are invalid, illegal, or unenforceable in any liability respect, said obligations shall automatically be amended to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence conform to the maximum monetary limits and other provisions in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementapplicable law for so long as the law is in effect.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in 14.1 Indemnity
14.1.1 The TSP shall indemnify, defend and hold each Long Term Transmission Customer harmless against:
(a) any and all third party claims, actions, suits or proceedings against the Long Term Transmission Customers for any loss of or damage to property of such third party, or death or injury to such third party, arising out of a breach by the TSP of any of its obligations under this Agreement, absent except to the Sub-Adviser’s material extent that any such claim, action, suit or proceeding has arisen due to a negligent act or omission, breach of this Agreement or non-fulfilment of statutory duty on the willful misconductpart of Long Term Transmission Customers ; and
(b) any and all losses, bad faithdamages, gross negligence costs and expenses including legal costs, fines, penalties and interest actually suffered or reckless disregard incurred by Long Term Transmission Customers from third party claims arising by reason of:
i. a breach by the TSP of any of its obligations under this Agreement, (provided that this Article 14 shall not apply to such breaches by the TSP, for which specific remedies have been provided for under this Agreement) except to the extent that any such losses, damages, costs and expenses including legal costs, fines, penalties and interest (together to constitute “Indemnifiable Losses”) has arisen due to a negligent act or omission, breach of this Agreement or non-fulfilment of statutory duty on the part of Long Term Transmission Customers, or
ii. any of the representations and warranties of the TSP under this Agreement being found to be inaccurate or untrue.
14.1.2 Each of the Long Term Transmission Customers shall indemnify, defend and hold the TSP harmless against:
(a) any and all third party claims, actions, suits or proceedings against the TSP, for any loss of or damage to property of such third party, or death or injury to such third party, arising out of a breach by the Long Term Transmission Customers of any of their obligations under this Agreement except to the extent that any such claim, action, suit or duties hereunder proceeding has arisen due to a negligent act or omission, breach of this Agreement or breach of statutory duty on the part of the Sub-AdviserTSP, its Contractors, servants or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.; and
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, b) any and all losses, claims, damages, liabilities, costs and expenses including legal costs, fines, penalties and interest (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements‘Indemnifiable Losses’) (collectively, “Losses”) insofar as such Losses (actually suffered or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund incurred by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided TSP from third party claims arising by reason of:
i. a breach by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance Long Term Transmission Customers of its duties any of their obligations under this Agreement (provided that this Article 14 shall not apply to such breaches by Long Term Transmission Customers, for which specific remedies have been provided for under this Agreement), except to the extent that any such Indemnifiable Losses have arisen due to a negligent act or the reckless disregard of its obligations or duties hereunder; or (iii) any material omission, breach of this Agreement by or breach of statutory duty on the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 part of the Securities ActTSP, from its Contractors, servants or agents or
ii. any of the representations and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in warranties of the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties Long Term Transmission Customers under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking being found to be indemnified under Section 9(c) inaccurate or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderuntrue.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent bad faith or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall indemnify and hold harmless the Investment Adviser, Fund, and the Trust, and their principals, officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of disregard.
C. Except as may otherwise be provided by the obligations 1940 Act or duties hereunder on any other federal securities law, the part of the Sub-Adviser, or its officers, directors, partners, agents, employees Investment Adviser shall indemnify and controlling persons, hold harmless the Sub-Adviser shall not be liable for any act or omission in the course ofand its partners, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersprincipals, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities ActSub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilities, costs liabilities or litigation (including reasonable legal and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsother expenses) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out to which any of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s willful misconduct, bad faith, gross negligence or reckless disregard
D. Notwithstanding anything in such documents where such disclosure was actually included in such documents in this Agreement to the form and context as provided by contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
E. The Investment Adviser; , the Fund and the Trust agree that, notwithstanding anything to the contrary herein or in the partnership law of New York or any other jurisdiction, (i) the Investment Adviser, the Fund and the Trust will look solely to the assets of the Sub-Adviser to satisfy all debts, obligations and liabilities of the Sub-Adviser arising hereunder or in connection herewith (whether arising in contract, tort or otherwise), and (ii) the bad faithInvestment Adviser, willful misconduct the Fund and the Trust will not have recourse or gross negligence by otherwise look to the individual or personal assets of any past, present or future partner of the Sub-Adviser in or his or her spouse, family or estate.
F. No Trustee or shareholder of the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as The duties of the Sub-Adviser shall be confined to those expressly set forth in this Agreement, absent Section 1(b) hereof and the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Adviser expressly disclaims liability for any other duties. The Sub-Adviser shall not be liable for any act loss, damage, liability, cost or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended expense (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, including reasonable attorneys’ and accountants’ fees and disbursementsamounts paid in settlement) (collectively, “Losses”) insofar as such Losses (or actions arising in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the FundBDC’s Registration Statementactivities, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by except a Loss resulting from the Sub-Adviser; (ii) the bad faith, ’s willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductmisfeasance, bad faith or gross negligence in the performance of such personits duties, or by reason of reckless disregard of its obligations and duties hereunder, except as may otherwise be provided under provisions of applicable state law which cannot be waived or modified hereby, in each case, as the same is finally determined by judicial proceedings. (As used in this Section 8(a), the term “Sub-Adviser” shall include, without limitation, its affiliates and the Sub-Adviser’s and its affiliates’ respective partners, shareholders, directors, members, principals, officers, managers, employees agents and controlling persons, including, without limitation, the Sub-Adviser’s managing member, each of which shall be deemed a third party beneficiary for purposes hereof).
b. The Sub-Adviser shall indemnify the Adviser and BDC against any Loss arising from, or in connection with, the Sub-Adviser’s breach of the terms, representations and warranties herein or otherwise based upon the performance of the Sub-Adviser’s duties or obligations under this Agreement, including by reason of any pending, threatened or completed claim, action, suit, investigation or other proceeding or regulatory or self-regulatory inquiry (including an action or suit by or in the right of the BDC (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Sub-Adviser, including, without limitation, its manager); provided, however, that the Adviser shall not be indemnified for any Loss that is sustained as a result of the Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of the Adviser’s duties or by reason of its the reckless disregard of such personthe Adviser’s duties and obligations and duties under this Agreement, in each case, as the same is finally determined by judicial proceedings.
c. The BDC shall indemnify the Sub-Adviser for any Loss whatsoever, arising from, or in connection with, the Sub-Adviser’s performance of its obligations under this Agreement, and the Adviser shall indemnify the Sub-Adviser (as defined in Section 8(a)) against any Loss arising from, or in connection with, the Adviser’s breach of the terms, representations and warranties herein or otherwise based upon the performance of the Adviser’s duties or obligations under this Agreement or as investment adviser of the BDC, including by reason of any pending, threatened or completed claim, action, suit, investigation or other proceeding or regulatory or self-regulatory inquiry (including an action or suit by or in the right of the BDC or the Adviser (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Adviser, including, without limitation, its manager); provided, however, that the Sub-Adviser shall not be indemnified for any Loss that is sustained as a result of the Sub-Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of the Sub-Adviser’s duties or by reason of the reckless disregard of the Sub-Adviser’s duties and obligations under this Agreement, in each case, as the same is finally determined by judicial proceedings.
d. With respect to any claim of indemnification hereunder, the BDC or the Adviser, as the case may be, shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if it receives a written undertaking to make reimbursement if it is finally judicially determined that such person is not entitled to indemnification, and if, in the case of advances by the BDC, a majority of the Independent Directors or an opinion of independent counsel determines, based on a review of readily available factors (as opposed to a trial determination) that there is reason to believe that the Sub-Adviser will ultimately be found to be entitled to indemnification.
e. Nothing in this Section 8 shall be construed so as to provide for the indemnification of any party or any limitation on the liability of any party that would, in either case, be in violation of applicable law, but such provisions shall otherwise be construed so as to effectuate the provisions of this Section 8 to the fullest extent permitted by applicable law.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Hancock Park Corporate Income, Inc.)
Liability and Indemnification. a. Except as expressly set forth in (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, absent but nothing herein contained shall make Subadviser or any of its officers, partners, or employees liable for any loss sustained by the Sub-Adviser’s material breach Funds or their officers, directors, or shareholders, Manager, or any other person on account of the services which Subadviser may render or fail to render under this Agreement Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Funds or the their officers, directors, shareholders, Manager, or any other person to which Subadviser would otherwise be subject, by reason of its willful misconductmisfeasance, bad faith, or gross negligence in the performance of its duties, or by reason of its reckless disregard of the its obligations or and duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser under this Agreement. Nothing in this Agreement shall not be liable for protect Subadviser from any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges liabilities that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of may have under the Securities Act of 1933, as amended amended, (the “Securities "1933 Act”"), againstthe 1940 Act, or the Advisers Act. Subadviser does not warrant that the portion of the assets of each of the Funds managed by Subadviser will achieve any particular rate of return or that its performance will match that of any benchmark index or other standard or objective.
(b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Subadviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by the Funds, Manager, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, "Fund and Manager Indemnitees") as a result of any error of judgment or mistake of law by Subadviser with respect to the Funds, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Subadviser for, and Subadviser shall indemnify and hold them harmless fromthe Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, costs or litigation (including reasonable legal and expenses (includingother expenses) to which any of the Fund and Manager Indemnitees may become subject under the 1933 Act, without limitationthe 1940 Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) insofar as such Losses (or actions with respect thereto) arise under any other statute, at common law, or otherwise arising out of or are based upon on (i) any actual material misstatement willful misconduct, bad faith, reckless disregard, or omission gross negligence of Subadviser in the Fund’s Registration Statement, performance of any proxy statement, of its duties or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviserobligations hereunder; (ii) any untrue statement of a material fact regarding the bad faithSubadviser contained in the Prospectus and SAI, willful misconduct proxy materials, reports, advertisements, sales literature, or gross negligence other materials pertaining to the Funds or the omission to state therein a material fact regarding the Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to Manager or the Funds by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderSubadviser Indemnitees (as defined below) for use therein; or (iii) any material breach violation of this Agreement federal or state statutes or regulations by Subadviser. It is further understood and agreed that Subadviser may rely upon information furnished to it by Manager that it reasonably believes to be accurate and reliable.
(c) Except as may otherwise be provided by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures 1940 Act or any representation or warranty contained in this Agreement.
d. The Adviser other federal securities law, Manager and the Fund Funds shall indemnify the Sub-Adviser not be liable for any losses, claims, damages, liabilities, or litigation (including legal and each other expenses) incurred or suffered by Subadviser or any of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons (as described in Section 15 of the Securities 1933 Act) (collectively, "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by Manager with respect to the Funds, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Manager for, and Manager shall indemnify and hold harmless the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Subadviser Indemnitees may become subject under the 1933 Act, from and against the 1940 Act, the Advisers Act, or under any Losses suffered other statute, at common law, or sustained in connection with this Agreement, provided that such Losses did not result from otherwise arising out of or based on (i) any actual material misstatement willful misconduct, bad faith, reckless disregard, or omission gross negligence of Manager in the Fund’s Registration Statement, performance of any proxy statement, of its duties or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviserobligations hereunder; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser any untrue statement of a material fact contained in the performance of its duties under this Agreement Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the reckless disregard of its obligations omission to state therein a material fact which was required to be stated therein or duties hereunder; necessary to make the statements therein not misleading, unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Manager or the Funds by a Subadviser Indemnitee for use therein, or (iii) any material breach violation of this Agreement federal or state statutes or regulations by Manager or the Sub-Adviser including without limitation Funds. It is further understood and agreed that Manager may rely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable.
(d) After receipt by Manager, the StrategyFunds, Governing Documents or Procedures Subadviser, their affiliates, or any representation officer, director, employee, or warranty contained agent of any of the foregoing, entitled to indemnification as stated in this Agreement.
e. Promptly after receipt (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom any person obligated to provide indemnification is sought under Section 9(c) or 9(d) this section (the “"Indemnifying Party”) "), such Indemnified Party shall notify the Indemnifying Party in writing of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of such Proceedingthe claim that has been served upon the Indemnified Party; provided that, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from any indemnification liability which it may have under this section, except to the extent that such Indemnifying Party is damaged as a result of the failure to give such notice. The Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel satisfactory to the Indemnified Party; provided that Party to represent the Indemnified Party in the proceeding, and shall pay the fees and disbursements of such party is not materially prejudiced counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (1) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (2) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation by such failure both parties by the same counsel would be inappropriate due to notifyactual or potential differing interests between them. No The Indemnifying Party shall not be liable under this section for any settlement of any Proceeding entered into proceeding effected without its written consent, which consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of unreasonably withheld, but if settled with such consent or affect any other rights if there be a final judgment for the plaintiff, the Indemnifying Party agrees to which any person may be entitled by contract or otherwise by law, indemnify the Indemnified Party from and shall not protect any person against any loss or liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith such settlement or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementjudgment.
Appears in 1 contract
Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)
Liability and Indemnification. a. (a) Except as expressly set forth in this Agreementfor claims, absent liabilities, damages or expenses that are finally Judicially Determined to have resulted from any action or omission by the Sub-Adviser’s material Program Administrator (other than an action or omission at a Participant's request or with the Participant's express permission) that constitutes a breach of this Agreement or the fiduciary duty, willful misconductmalfeasance, bad faith, gross faith or negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-AdviserProgram Administrator (collectively, or its officers, directors, partners, agents, employees and controlling persons"Program Administrator Liability"), the Sub-Adviser Participants agree that the Program Administrator shall not be liable for any claims, liabilities, damages or expenses which the Participants or anyone claiming by or through any of the foregoing may sustain by reason of any act or omission by the Program Administrator (including, but not limited to, investment advice or the failure to give investment advice at any time) in the course of, connected with or connected with, rendering arising out of any services to be rendered hereunder or under the Program Administrator Agreement. Notwithstanding the foregoing, in no event shall the Program Administrator be liable to any person for any losses special, incidental or consequential damages, including, but not limited to, loss of profits or revenue or damages suffered by the Participants in connection with claims for such damages asserted against the Participants by any person.
(b) Except for claims, liabilities, damages or expenses that are finally Judicially Determined to have resulted from any action or omission by the Participants (other than an action or omission at the Program Administrator's request or with the Program Administrator's express permission) that constitutes a breach of fiduciary duty, willful malfeasance, bad faith or negligence on the part of the Participants, the Program Administrator, through the terms of the Program Administrator Agreement, agrees that the Participants shall be liable for any claims, liabilities, damages or expenses which the Program Administrator or anyone claiming by or through the Program Administrator may be sustained in the purchase, holding or sale sustain by reason of any positionact or omission by the Participants. Notwithstanding the foregoing, in no event shall the Participants be liable to the Program Administrator for any special, incidental or consequential damages suffered by the Program Administrator, including, but not limited to, loss of profits or revenue or damages suffered by the Program Administrator in connection with claims for such damages asserted against the Program Administrator by any person.
b. The Sub-Adviser acknowledges that it has received notice (c) To the extent permitted by law, and subject to the availability of appropriations by the legislature, the Participants agree to defend, indemnify and accepts hold harmless the limitations upon Program Administrator, any permitted subcontractors, their respective affiliates (including any controlling person) and the Fund’s liability set forth in the Trust’s Agreement respective directors, officers, agents and Declaration employees of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Actforegoing, from and against any Losses suffered and all claims, liabilities, damages or sustained in connection with this Agreementexpenses, provided that such Losses did not result from whether they proceed to judgment or are settled or otherwise brought to a conclusion, arising out of or related to (i) any actual material misstatement breach of a representation, warranty or omission covenant hereunder or contained in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund Exhibit A hereto by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; Participants or (ii) any services performed, or to be performed, hereunder or under the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Program Administrator Agreement by the Sub-Adviser including without limitation the StrategyProgram Administrator (including, Governing Documents but not limited to, investment advice or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify give investment advice at any time); except for any Program Administrator Liability.
(d) Subject to Sections 5.8 (a) and 5.8 (b) above, the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party rights set forth in Section 5.8 (c) above shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect in addition to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights that any indemnified party may have at common law or otherwise, including, but not limited to, any right to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementcontribution.
Appears in 1 contract
Samples: Cooperation and Management Agreement
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent In the Sub-Adviser’s material breach absence of this Agreement or the willful misconductmisfeasance, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder ("disabling conduct") hereunder, on the part of the Sub-Adviser, or Adviser (and its officers, directors, partners, agents, employees and employees, controlling persons, shareholders and any other person or entity affiliated with the Sub-Adviser), the Sub-Adviser shall not be liable subject to liability to the Adviser, its officers, directors, agents, employees, controlling persons or shareholders or to the Fund or to any shareholder of the Fund for any act or omission in the course of, or connected with, rendering services hereunder hereunder, including without limitation, any error of judgment or mistake of law or for any losses that may be sustained loss suffered by any of them in connection with the purchasematters to which this Agreement relates. Except for such disabling conduct,the Adviser shall indemnify the Sub-Adviser ( and its officers, holding directors, partners, agents, employees, controlling persons, shareholders and any other person or entity affiliated with the Sub-Adviser) (collectively, the "Indemnified Parties") from any and all losses, claims, damages, liabilities or litigation ( including reasonable legal and other expenses) arising from the Sub-Adviser's providing services under this Agreement or the sale of any positionsecurities of the Fund.
b. The Sub-Adviser acknowledges that it has received notice of agrees to indemnify and accepts the limitations upon hold harmless the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and their affiliates and each of their respective officers, directors, trustees, membersagents, officers, employees, agents and shareholders, employees and each person, if any, person who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended 1933 (the “Securities "1933 Act”), against, and hold them harmless from, ") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in to which the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or their affiliates or such officers, directors, trustees, agents, employees or controlling persons may become subject under the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided 1933 Act, under other statutes, at common law or otherwise, which are caused by the Sub-Adviser; (ii) 's disabling conduct or any untrue statement of a material fact contained in the bad faithRegistration Statement, willful misconduct proxy materials, reports, advertisements, sales literature or gross negligence by other materials pertaining to the Fund or the omission to state therein a material fact known to the Sub-Adviser in which was required to be stated therein or necessary to make the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did statements therein not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by misleading. In no case is the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser 's indemnity in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice favor of any action, arbitration, claim, demand, dispute, investigation, lawsuit or person deemed to protect such other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person persons against any liability to which any such person would otherwise be subject by reason reasons of willful misconductmisfeasance, bad faith faith, or gross negligence in the performance of such person’s his, her or its duties or by reason of his, her or its reckless disregard of such person’s obligations and or duties under this Agreement.
c. The Sub-Adviser shall not be liable to the Adviser, its officers, directors, agents, employees, controlling persons or shareholders or to the Fund or its shareholders for (i) any acts of the Adviser or any other sub-adviser to the Fund with respect to the portion of the assets of the Fund not managed by the Sub-Adviser; and (ii) acts of the Sub-Adviser which result from or are based upon acts of the Adviser, including, but not limited to, a failure of the Adviser to provide accurate and current information with respect to any records maintained by the Adviser or any other sub-adviser to the Fund, which records are not also maintained by the Sub-Adviser or, to the extent such records relate to the portion of the assets managed by the Sub-Adviser, [otherwise available to the Sub-Adviser upon reasonable request.] The Adviser and Sub- Adviser each agree that the Sub-Adviser shall manage the portion of the assets of the Fund allocated to it and shall comply with Section 2 of this Agreement (including, but not limited to, the investment objectives, policies and restrictions applicable to the Fund) only with respect to the portion of assets of the Fund allocated to the Sub-Adviser. The Adviser shall indemnify the Indemnified Parties from any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) arising from the conduct of the Adviser, the Fund and any other sub-adviser with respect to the portion of the Fund's assets not allocated to the Sub-Adviser.
Appears in 1 contract
Samples: Sub Advisory Agreement (Van Kampen Dynamic Credit Opportunities Fund)
Liability and Indemnification. a. A. Except as expressly set forth in this Agreementmay otherwise be provided by the Investment Company Act or any other federal securities law, absent neither the Sub-Adviser’s material breach , any affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and any controlling persons (as described in Section 15 of the 1933 Act), nor any of their respective officers, members or employees (each an “Affiliate” and collectively, its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation or any formal or informal inquiry, investigation or request by a regulatory agency or authority with jurisdiction over the Sub-Adviser (including legal and other expenses) incurred or suffered by the Adviser, the Trust, each Fund or any of their Affiliates, control persons or securityholders as a result of any error of judgment, mistake of law or any other action or inaction by the Sub-Adviser or its Affiliates with respect to a Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Sub-Adviser for acts or omissions to act arising out of or based on any willful misconduct, bad faith, reckless disregard or gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser in the performance of any of its duties or obligations hereunder.
B. Except as may otherwise be provided by the Investment Company Act or any other federal securities law, the Adviser, or its officersthe Trust, directorseach Fund and their Affiliates, partners, agents, employees control persons and controlling persons, the Sub-Adviser securityholders shall not be liable for any act losses, claims, damages, liabilities or omission in litigation or any formal or informal inquiry, investigation or request by a regulatory agency or authority with jurisdiction over the course of, Adviser (including legal and other expenses) incurred or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that suffered by the Sub-Adviser shall not seek satisfaction as a result of any error of judgment, mistake of law or any other action or inaction by the Adviser with respect to such obligation from Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the shareholders liability of the Fund nor from any other series of Adviser for, and the Trust or any Trustees or officer, employee or agent of Advisor shall indemnify and hold harmless the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAdviser, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 19331933 Act) (collectively, as amended (the “Securities ActSub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation or any formal or informal inquiry, costs investigation or request by a regulatory agency or authority with jurisdiction over the Adviser (including reasonable legal and expenses (includingother expenses) to which any of the Sub-Adviser Indemnitees may become subject under the 1933 Act, without limitationthe Investment Company Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) insofar as such Losses (or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any actual willful misconduct, bad faith, reckless disregard or gross negligence of the Adviser, the Trust or any Trustees of the Trust in the performance of any of their duties or obligations hereunder or under the Investment Advisory Agreement, (ii) any untrue statement of a material misstatement fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to any Fund or the omission to state therein a material fact that was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made solely in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Adviser or the Fund Trust in writing by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; or (iiiii) the bad faith, willful misconduct any action or gross negligence inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the performance of its duties under this Agreement Adviser’s, the Trust’s or such Fund’s written instructions to the reckless disregard of its obligations or duties hereunder; or Sub-Adviser.
C. Expenses (iiiincluding attorneys’ fees) any material breach of this Agreement incurred by the Sub-Adviser including without limitation Advisor in defense or settlement of any claim that may be subject to a right of indemnification hereunder shall be advanced prior to the Strategy, Governing Documents final disposition thereof upon receipt of an undertaking by or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify on behalf of the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls Advisor to repay the amount advanced to the extent that it shall be determined ultimately that the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, Advisor is not entitled to be indemnified hereunder; provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion Advisor shall provide a letter from its counsel that in view of such documents where such disclosure was actually included in such documents in the form and context as provided by counsel, the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking Advisor is not likely to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is found to be made against a party against whom not entitled to indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities ActFund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents where such disclosure was actually included in such documents in its failure to perform under this Agreement or for any losses to the form and context as provided by Investment Adviser or the Sub-Adviser; (ii) Trust resulting from any event beyond the bad faith, willful misconduct or gross negligence by reasonable control of the Sub-Adviser in or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the performance of its duties under this Agreement Trust’s property; or the reckless disregard breakdown, failure or malfunction of its any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
D. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser (a) Landlord shall not be liable to Tenant or Tenant's employees, agents, officers, partners, licensees or invitees, or to any other person whomsoever, for any act damage to property on or omission in about the course ofPremises belonging to Tenant or any other person, due to any cause whatsoever, unless caused by the negligence or willful misconduct of Landlord, its agents, employees, contractors, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionsubcontractors.
b. The Sub-Adviser acknowledges (b) Tenant hereby covenants and agrees that it has received notice of will at all times indemnify, defend and accepts the limitations upon the Fundhold safe and harmless Landlord and Landlord’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents agents, invitees and shareholders, visitors from and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless frompay or reimburse Landlord for, any and all lossesloss, liability, claims, suits, costs, expenses, including without limitation attorney's fees, costs of litigation and damages, liabilitiesincurred by Landlord, costs its trustees, officers, employees, agents, invitees or visitors arising out of or resulting from the occupancy by Tenant of the Premises, the operation of the Hospital and expenses the Affiliated Operations by Tenant, a breach by Tenant of any provision of this Lease, other than losses resulting from breach of the Lease or from the negligence or bad faith of Landlord.
(c) To the extent permitted by law, Landlord hereby covenants and agrees that it will at all times indemnify, defend and hold safe and harmless Tenant and Xxxxxx’s trustees, officers, employees, agents, invitees and visitors from and against, and pay or reimburse Tenant for, any loss, liability, claims, suits, costs, expenses, including, without limitation, reasonable attorneys’ attorney's fees, costs of litigation, and accountants’ fees damages, incurred by Tenant, its trustees, officers, employees, agents, partners, invitees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise visitors arising out of or are based upon resulting from a breach by Landlord of any provision of this Lease, or from the negligence or bad faith of Landlord, and any liability arising from or related to the operation of the Hospital or the Affiliated Operations prior to the Commencement Date of this Lease, unless such liability was specifically assumed by Tenant pursuant to the provisions of this Lease or the Assignment Agreement, or after the termination of this Lease.
(d) Tenant shall procure and maintain throughout the term of this Lease a policy or policies of insurance, at its sole cost and expense, naming Landlord as an additional insured, and insuring both Landlord and Tenant against all claims, demands or actions arising out of or in connection with: (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-AdviserPremises; (ii) the bad faith, willful misconduct or gross negligence by condition of the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderPremises; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained Tenant's operations in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser maintenance and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 use of the Securities ActPremises; (iv) the equipment, from personal property and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from fixtures of Tenant located on the Premises; (iv) any actual material misstatement or omission interruption in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in conduct of the Fund relating to disclosure provided to business of Tenant on the Adviser Premises; and (v) Tenant's liability assumed under this Lease or the Fund Assignment Agreement. The limits of coverage maintained by the Sub-Adviser Tenant for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (iia) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification commercial general liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent not less than $ with respect to which indemnity may be sought hereunder.
f. The rights each occurrence, not less than $ with respect to personal injury or death of indemnification provided in this section a single person, not less than $ general aggregate, and not less than $ with respect to products completed operations aggregate, (b) professional liability insurance shall not be exclusive less than on $ with respect to each occurrence and not less than $ in general aggregate, (c) business interruption insurance shall be not less than coverage for actual loss, and (d) for replacement of or affect the equipment, personal property and fixtures of Tenant shall be not less than full replacement value.
(e) Tenant may also obtain and maintain insurance coverage for Excluded Liabilities of Landlord as permitted under Section 7(b) of the Assignment Agreement and defined therein.
(f) All such policies shall be procured by Tenant from responsible insurance companies reasonably satisfactory to Landlord. Certified copies of such policies, together with receipt evidencing payments of premiums thereof, shall be delivered to Landlord prior to the Commencement Date. Not less than fifteen (15) days prior to the expiration date of any other rights such policies, certified copies of the renewals thereof (bearing notations evidencing the payment of renewal premiums) shall be delivered to which any person Landlord. Such policies shall further provide that not less than fifteen (15) days prior written notice shall be given to Landlord before such policy may be entitled by contract canceled or otherwise by law, and shall not protect any person against any liability changed to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementreduce insurance provided thereby.
Appears in 1 contract
Samples: Lease and Operating Agreement
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent (a) Neither the Sub-Adviser’s material breach of this Agreement or the willful misconductAdviser nor its shareholders, bad faithmembers, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partnersemployees, agents, employees control persons or affiliates of any thereof, shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and controlling personsthe amount set forth in Section 36(b)(3) of the 0000 Xxx) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Sub-Advisory Agreement. For the avoidance of doubt and without limiting the generality of the foregoing, the Sub-Adviser shall not be liable to the Adviser or the Fund for any action taken or failure to act in good faith reliance upon: (i) information, instructions or omission in requests, whether oral or written, with respect to the course of, or connected with, rendering services hereunder or for any losses that may be sustained in Fund made to the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice by the Adviser, the Trust, or the Board; (ii) the advice of and accepts the limitations upon counsel to the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that ; (iii) any written instructions or any resolution of the Fund’s obligations shall be limited to the assets of the Fund and that Board. Furthermore, the Sub-Adviser shall not seek satisfaction be responsible or liable for any failure or delay in performance of any such obligation from its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control including, without limitation, acts of civil or military authority, national emergencies, labor difficulties (other than those related to the shareholders Sub-Adviser’s employees), fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the Fund nor from any other series of the Trust mails, transportation, communication or any Trustees or officer, employee or agent of the Fund or other series of the Trustpower supply.
c. (b) The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits partners, officers, employees, agents employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”)Adviser, against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs costs, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, collectively “Losses”) insofar asserted by any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) the material violation by the Sub-Adviser of applicable law; or (ii) the bad faith, willful misconduct, or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or reckless disregard of its obligations or duties hereunder.
(c) The Adviser shall indemnify the Sub-Adviser and each of its partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser, against, and hold them harmless from, any and all Losses asserted by any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration StatementProspectus, any proxy statement, marketing material, or communication to current or prospective investors in the Fund (other than a misstatement or omission relating to written disclosure provided to the Adviser or the Fund by the Sub-Adviser specifically for inclusion in such documents where such disclosure was actually included documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in such documents in good faith pursuant to and consistent with the form and context as provided by Adviser, Trust, or Board’s instructions to the Sub-Adviser; (iiiii) the material violation by the Adviser of applicable law; or (iv) the Adviser’s bad faith, willful misconduct misconduct, gross negligence, or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in under this Agreement, the Management Agreement and under any other agreements or documents under which the Adviser has obligations or duties to the Fund.
d. The (d) Additionally, the Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agentsshareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities ActAdviser, from against, and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statementhold them harmless from, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund and all Losses asserted by any third party against the Sub-Adviser in connection with the operation of the Fund in so far as such Losses (or actions with respect thereto) arise out of or are based upon events that occurred prior to the appointment of Sub-Adviser as sub-adviser to the Fund.
(e) Any person, even though also a director, officer, employee, shareholder, member or agent of the Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s duties hereunder), to be rendering such services to or acting solely for inclusion in such documents where such disclosure was actually included in such documents in the form Trust and context not as provided a director, officer, employee, shareholder, member or agent of the Sub-Adviser, or one under the Sub-Adviser’s control or direction, even though paid by the Sub-Adviser; .
(iif) the bad faith, willful misconduct or gross negligence by the Adviser acknowledges that Sub-Adviser in does not guarantee the future performance of its duties under this Agreement the Fund or any specific level of performance, nor the reckless disregard success of its obligations or duties hereunder; or (iii) any material breach Sub-Adviser’s overall management of this Agreement by the Fund. Accordingly, Adviser acknowledges and agrees that Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from have any indemnification liability which it may have to the Indemnified Party; legal or financial responsibility for performance or losses except as otherwise provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderherein.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the (a) Neither Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or Adviser nor its officers, directors, partners, agentsemployees, employees and affiliates, agents or controlling personspersons shall be liable to the Trust, each Fund, its shareholders and/or any other person for the acts, omissions, errors of judgment and/or mistakes of law of any other fiduciary and/or person with respect to each Fund.
(b) Neither the Sub-Adviser nor its officers, partners, employees, affiliates, agents or controlling persons or assigns shall not be liable for any act act, omission, error of judgment or omission in the course of, or connected with, rendering services hereunder or mistake of law and/or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in loss suffered by the Trust’s , each Fund, its shareholders and/or any other person in connection with the matters to which this Agreement and Declaration relates; provided that no provision of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations this Agreement shall be limited deemed to the assets of the Fund and that protect the Sub-Adviser shall not seek satisfaction against any liability to the Trust, each Fund and/or its shareholders which it might otherwise be subject by reason of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerwillful misfeasance, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct faith or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or and duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in under this Agreement.
d. (c) The Adviser Trust on behalf of each Fund, hereby agrees to indemnify and the Fund shall indemnify hold harmless the Sub-Adviser Adviser, its partner, officers and each of its partners, officers, employees and agents, agents and each person, if any, who controls the Sub-Adviser within (collectively, the meaning of Section 15 of “Indemnified Parties”) against any and all losses, claims damages or liabilities (including reasonable attorneys fees and expenses), joint or several, relating to the Trust or Fund, to which any such Indemnified Party may become subject under the Securities Act of 1933, as amended (“1933 Act”), the 1934 Act, from the Advisers Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (1) any act, omission, error and/or mistake of any other fiduciary and/or any other person; or (2) any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission to state a material fact required to be stated or necessary to make the statements made not misleading in (a) the Registration Statement, the prospectus or any other filing, (b) any advertisement or sales literature authorized by the Trust for use in the offer and against sale of shares of each Fund, or (c) any Losses suffered application or sustained other document filed in connection with this Agreementthe qualification of the Trust or shares of each Fund under the Blue Sky or securities laws of any jurisdiction, provided that except insofar as such Losses did not result from losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission (i) any actual material misstatement or omission in a document prepared by the Fund’s Registration Statement, any proxy statementSub-Adviser, or communication to current or prospective investors (ii) made in the Fund relating to disclosure provided reliance upon and in conformity with information furnished to the Trust by or on behalf of the Sub-Adviser pertaining to or the Fund by originating with the Sub-Adviser for inclusion use in such documents where such disclosure was actually included connection with any document referred to in such documents in the form and context as provided by the Sub-Adviser; clauses (iia), (b) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iiic).
(d) any material breach of this Agreement by the Sub-Adviser including without limitation the StrategyIt is understood, Governing Documents or Procedures or any representation or warranty contained however, that nothing in this Agreement.
e. Promptly after receipt of notice of paragraph 10 shall protect any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party willagainst, if a claim in respect thereof is to be made against a party against whom or entitle any Indemnified Party to, indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to the Trust, Fund and/or its shareholders to which any such person would otherwise be subject Indemnified Party is subject, by reason of its willful misconductmisfeasance, bad faith or gross negligence in the performance of such person’s duties its duties, or by reason of its any reckless disregard of such person’s its obligations and duties under this Agreement or any breach of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Sub-Adviser shall not be liable for any loss to each Fund or the Adviser caused directly or indirectly by circumstances beyond the Sub-Adviser’s reasonable control including, but not limited to, government restrictions, exchange or market rulings, suspensions of trading, acts of civil or military authority, national emergencies, earthquakes, floods or other catastrophes, acts of God, wars or failures of communication or power supply.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities ActSub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on the Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each Prospectuses or Statements of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein. Except as may otherwise be provided by the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by other federal securities law, the Sub-Adviser shall indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including without limitation reasonable legal and other expenses) to which any of the StrategyFund Indemnitees may become subject at common law or otherwise, Governing Documents arising out of the Sub-Adviser's action or Procedures inaction or based on the Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of made herein or (ii) any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of such person’s any of its duties or by reason obligations hereunder. Notwithstanding the foregoing, the Fund shall not be deemed to have waived any right which, under applicable law, cannot be waived. No Trustee or shareholder of its reckless disregard the Trust shall be personally liable for any debts, liabilities, obligations or expenses incurred by, or contracted for under the Agreement. No Fund will be liable for any debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under the Agreement. This Section 7 shall survive the termination of such person’s obligations and duties under this the Agreement.
Appears in 1 contract
Liability and Indemnification. a. 7.1 Except as expressly set forth provided in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser a Party shall not be liable to the other Party in contract, tort, warranty, strict liability or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages, loss of use, Xxxx of contract, Xxxx of opportunity or loss of profit arising from any act or omission relating to this Agreement.
7.2 SMUNL shall not be responsible to SNOL for or in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale respect of any positionsuits, proceedings, claims or demands of third parties consequent upon anything done or omitted to be done by the Personnel.
b. 7.3 The Subaggregate liability of SMUNL (whether based on tort, breach of contract or otherwise) arising out of or in connection with its performance or non-Adviser acknowledges that it has received notice performance of and accepts its obligations under this Agreement shall not exceed: (i) the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any amount of the Fund’s obligations loss or damage to which the liability relates; or (ii) the value of the Personnel Service Fee or the Procurement Service Fee as applicable; whichever is less. SMUNL shall be limited to vicariously liable for the assets negligence and misconduct of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits directors, officers, employees, subcontractors and agents under this Agreement and shareholdersno director, and each personofficer, if anyemployee, who controls the Fund subcontractor or the Adviser within the meaning agent of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), SMUNL shall have any personal liability under this Agreement. This is without prejudice to any rights which SNOL may have at law or in equity.
7.4 SNOL shall indemnify SMUNL against, and hold them harmless fromSMUNL harmless, at all times, after the Effective Date, from any and all losses, and any and all actions, claims, damages, liabilities, demands and expenses of whatever kind or nature including all related costs and expenses (includingexpenses, without limitationin respect of any loss, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelydamage, “Losses”) insofar as such Losses (personal injury or actions with respect thereto) arise death, in each case arising out of the negligence, default or are based upon (i) wilful misconduct of SNOL or any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersdirectors, officers, employees employees, subcontractors and agents.
7.5 SMUNL shall indemnify SNOL against, and hold SNOL harmless, at all times, after the Effective Date, from any and all losses, and any and all actions, claims, demands and expenses of whatever kind or nature including all related costs and expenses, in respect of any loss, damage, personal injury or death, in each person, if any, who controls the Sub-Adviser within the meaning of Section 15 case arising out of the Securities Actnegligence, from and against default or wilful misconduct of SMUNL or any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategydirectors, Governing Documents or Procedures or any representation or warranty contained in this Agreementofficers, employees, subcontractors and agents.
e. Promptly after receipt 7.6 The Indemnified Party shall promptly notify the Indemnifying Party of notice the assertion or commencement of any action, arbitration, claim, demand, disputeinvestigation, action, suit or other proceedings for which indemnity or defence is or may be sought under this Agreement; provided however, that this notice requirement shall not apply to any claim, demand, investigation, lawsuit action, suit or other legal proceeding (each a “Proceeding”) by a party seeking in which the Parties are adversaries.
7.7 The Indemnifying Party shall be entitled, at its option, to be indemnified under Section 9(c) assume and control the defence of such claim, action, suit or 9(d) (procedure at its own expense with legal advisers of its selection reasonably satisfactory to the “Indemnified Party”), the Indemnified Party willprovided however, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify that the Indemnifying Party shall not relieve the Indemnifying Party from settle or compromise any indemnification liability which it may have to third party claim without the Indemnified Party; provided that 's prior written consent to such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderor compromise.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Administrative Support Contract (Seadrill Partners LLC)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent may otherwise be provided by the Sub-Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other applicable law, the Sub-Adviser Subadviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Adviser or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-Adviser acknowledges error of judgment or mistake of law by the Subadviser with respect to the Portfolio, except that it has received notice nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Subadviser for, and accepts the limitations upon the Fund’s liability set forth in Subadviser shall indemnify and hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all controlling persons (as described in Section 15 of the Securities Act of 19331933 Act) (collectively, as amended (the “Securities ActAdviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs the 1940 Act, the Advisers Act, or under any other statute, at common law or otherwise arising out of or based on (i) any willful misconduct, bad faith, reckless disregard or gross negligence of the Subadviser in the performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Portfolio or the omission to state therein a material fact known to the Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Subadviser Indemnitees (as defined below) for use therein. Information Classification: Limited Access
b. Except as may otherwise be provided by the 1940 Act or any other applicable law, the Adviser and expenses the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (includingincluding legal and other expenses) incurred or suffered by the Subadviser as a result of any error of judgment or mistake of law by the Adviser with respect to the Portfolio, without limitationexcept that nothing in this Agreement shall operate or purport to operate in any way to exculpate, reasonable attorneys’ waive or limit the liability of the Adviser for, and accountants’ fees the Adviser shall indemnify and disbursementshold harmless the Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “LossesSubadviser Indemnitees”) insofar as such Losses against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or obligations hereunder, (ii) any failure by the reckless disregard Adviser to properly notify the Subadviser of its obligations changes to the Registration Statement or duties hereunder; any Charter Requirements that leads to any such losses, claims, damages, liabilities or litigation to which any of the Subadviser Indemnitees may be subject, or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementmaterials, reports, advertisements, sales literature, or communication other materials pertaining to current the Portfolio or prospective investors in the Fund relating omission to disclosure provided state therein a material fact known to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure which was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking required to be indemnified under Section 9(c) stated therein or 9(d) (necessary to make the “Indemnified Party”)statements therein not misleading, the Indemnified Party will, if a claim unless such statement or omission was made in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have reliance upon information furnished to the Indemnified Party; provided that such party is not materially prejudiced Subadviser by such failure to notify. No Indemnifying Party shall be liable under this section an Adviser Indemnitee for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderuse therein.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Subadvisory Agreement (Brighthouse Funds Trust I)
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (collectively, the “Securities Act”), against, and hold them harmless from, "Sub-Adviser lndemnitees") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on the Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each Prospectuses or Statements of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall indemnify and hold harmless the Fund and the Tmst, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the "Fund Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Sub-Adviser's action or inaction or based on the Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Tmst of a Fund representation or warranty made herein, (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; , or (iii) any untrue statement of a material breach fact contained in the Prospectuses or Statements of this Agreement by Additional Information, proxy materials, advertisements or sales literature, if such statement was made in reliance upon information furnished to the Sub-Adviser including without limitation by the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)Adviser, the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) Fund or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party Trust in writing of and intended for use therein. Notwithstanding the commencement of such Proceeding; provided thatforegoing, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section Fund shall not be exclusive of or affect deemed to have waived any other rights to which any person may be entitled by contract or otherwise by right which, under applicable law, and cannot be waived. No Trustee or shareholder of the Trust shall not protect be personally liable for any person against debts, liabilities, obligations or expenses incurred by, or contracted for under the Agreement. No Fund will be liable for any liability to which any such person would otherwise be subject by reason debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under the Agreement. This Section 7 shall survive the termination of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
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Liability and Indemnification. a. Except as expressly set forth None of the Servicer, the Special Servicer, the Trustee, the Note Administrator, the Collateral Manager, the Operating Advisor nor their Affiliates nor any of the managers, members, directors, officers, employees or agents thereof shall be under any liability to either the Issuer or the Co-Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, in good faith pursuant to or in connection with this Agreement, absent or for errors in judgment; provided, however, that none of the Sub-Adviser’s material Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor or any such Person will be protected against any breach of its representations or warranties (if any) made in this Agreement or the any liability that would otherwise be imposed by reason of willful misconductmisfeasance, bad faith, gross faith or negligence or reckless disregard in the performance of the obligations or its duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personshereunder. The Servicer, the Sub-Adviser shall not be liable for Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor, as the case may be, and any act director, officer, manager, member, employee or omission agent thereof may rely in the course of, or connected with, rendering services hereunder or for good faith on any losses that may be sustained in the purchase, holding or sale document of any position.
b. kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Sub-Adviser acknowledges that it has received notice of and accepts Servicer, the limitations upon Special Servicer, the Fund’s liability set forth in Note Administrator, the Trust’s Agreement and Declaration of TrustCollateral Manager, the Trustee or the Operating Advisor, as amended. The Sub-Adviser agrees that the case may be, and any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or member, manager, director, officer, employee or agent thereof shall be indemnified and held harmless by the Issuer and the Co-Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of such indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Co-Issuer, the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor authorized, requested or advised the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor, as the case may be, to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of the Fund willful misfeasance, bad faith, or negligence in the performance of the duties of the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s, the Collateral Manager’s, the Trustee’s or the Operating Advisor’s, as the case may be, representations and warranties set forth in Section 7.01. Any such indemnification shall be payable from any amounts on deposit in the Collection Account (other than in the case of the Note Administrator and the Trustee) and pursuant to the Priority of Payments under the Indenture. In the event that the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Mortgage Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer (or the Collateral Manager acting on behalf of the Issuer) shall promptly remit such overcharge to the related Obligor or other series Obligors after the Issuer’s receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of this indemnity, by reason of (i) the willful misfeasance, bad faith or negligence in the performance of the Trust.
c. The Sub-Adviser duties of the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager, the Trustee or the Operating Advisor, as applicable, hereunder or (ii) a breach of the representations and warranties of the Servicer, the Special Servicer or the Operating Advisor set forth in Section 7.01. Each of the Servicer and the Special Servicer, severally and not jointly, shall indemnify and hold harmless each of the Fund Trustee and the Adviser Note Administrator from and each of their respective trusteesagainst any claims, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilitiespenalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses (includingincurred by the Trustee or the Note Administrator, without limitationas the case may be, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) that arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, fraud or willful misconduct on the part of the Servicer or gross negligence by the Sub-Adviser Special Servicer, as the case may be, in the performance of its obligations under this Agreement or its negligent disregard of its obligations and duties under this Agreement. Each of the Trustee and the Note Administrator, severally and not jointly, shall indemnify and hold harmless each of the Servicer and the Special Servicer from and against any claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses incurred by the Servicer or the Special Servicer, as the case may be, that arise out of or are based upon the negligence, bad faith, fraud or willful misconduct on the part of the Trustee or the Note Administrator, as the case may be, in the performance of its obligations under this Agreement or the Indenture or its negligent disregard of its obligations and duties under this Agreement or the reckless disregard Indenture. Each of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation Servicer, the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser Special Servicer and the Fund Operating Advisor shall indemnify be entitled to the Sub-Adviser same rights, protections, immunities and indemnities afforded to each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained herein in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission matter contained in the Fund’s Registration StatementIndenture. Neither the Servicer nor the Special Servicer shall be responsible for any delay or failure in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, any proxy statementstrikes, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form lockouts, riots and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance acts of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”war), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party delay or failure is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement also a result of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductown negligence, bad faith or gross negligence willful misconduct. Additionally, neither the Servicer nor the Special Servicer shall be liable for the actions or omissions of the Issuer, the Co-Issuer, the Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder), the Trustee, the Note Administrator, the Servicer (in the performance case of such person’s duties the Special Servicer), the Special Servicer (in the case of the Servicer), and without limiting the foregoing, neither the Servicer nor the Special Servicer shall be under any obligation to verify compliance by any party hereto with the terms of the Indenture (other than itself) or to verify or independently determine the accuracy of information received by reason it from the Trustee or Note Administrator (or from any selling institution, agent bank, trustee or similar source) with respect to the Mortgage Loans or Mortgage Assets. The provisions of its reckless disregard this Section shall survive any termination of such person’s the rights and obligations and duties under this Agreementof the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor hereunder.
Appears in 1 contract
Liability and Indemnification. a. 3.2.1 Except as expressly set forth otherwise provided by law, no Member, Manager or officer or agent of any Member, Manager or officer shall be liable, responsible, or accountable in this Agreement, absent any way for damages or otherwise to the Sub-Adviser’s material breach of this Agreement Joint Venture or the willful misconduct, bad faith, gross negligence or reckless disregard to any of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable Members for any act or omission failure to act pursuant to this Agreement or otherwise unless there is a final, non-appealable judicial determination that: (i) such Person acted in bad faith; (ii) the course ofconduct of such Person constituted intentional misconduct or a knowing violation of law; (iii) such Person gained a financial benefit to which such Person was not legally entitled; or (iv) such Person failed to perform his or her duties with respect to distributions under Section 18-607 of the Delaware Act, or connected with, rendering services hereunder or for any losses in good faith and with that may be sustained degree of care that an ordinarily prudent person in the purchase, holding or sale of any positiona like position would use under similar circumstances.
b. 3.2.2 The Sub-Adviser acknowledges that it has received notice of Joint Venture shall indemnify, defend, and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any hold harmless each of the Fund’s obligations shall be limited to the assets of the Fund Members, Managers, officers and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or each agent of the Fund a Member, Manager or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesofficer against third parties (severally, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities ActIndemnitee” and collectively, the “Indemnitees”), againstfrom and against any claims, and hold them harmless from, any and all losses, claimsliabilities, damages, liabilitiesfines, costs penalties, costs, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsdisbursements of counsel and other professionals) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of or are based upon in connection with: (ia) such Indemnitee’s status as a Member, Manager or officer of the Joint Venture; (b) any actual material misstatement act or omission failure to act by an Indemnitee pursuant to this Agreement; or (c) any claims, damages, liabilities, costs or expenses incurred by the Indemnitee in the Fund’s Registration Statement, any proxy statement, connection with past or communication to current or prospective investors in the Fund relating to disclosure provided present services to the Adviser or Joint Venture to the Fund fullest extent permitted by the Sub-Adviser law, except for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the gross negligence, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the misfeasance, reckless disregard of its obligations duties or duties hereunderwillful violation of law having a material adverse effect on the Joint Venture by such Indemnitee; provided, further, that an Indemnitee shall not be entitled to indemnification hereunder if there is a judicial determination that such Person’s actions or omissions to act is set forth in clauses (i), (ii), (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning (iv) of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement3.2.1 above.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser 9.01 The Agent shall not be liable for any act action taken or omission in the course of, or connected with, rendering services hereunder or for any losses that may omitted to be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund taken by the Sub-Adviser Agent under or in connection with this Agreement, except for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided losses caused by the Sub-Adviser; (ii) the Agent's bad faith, willful wilfull misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementnegligence.
d. 9.02 The Adviser Company hereby agrees to indemnify and hold harmless the Fund shall indemnify the Sub-Adviser Agent, its affiliates, their current and each of its partnersformer directors, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered and all claims, demands, losses, penalties, costs, expenses, fees and liabilities, including, without limitation, legal fees and expenses directly or sustained indirectly arising out of, in connection with with, or in respect of, this Agreement, provided that except where same results from gross negligence, wilful misconduct or bad faith on the part of the Agent
9.03 Notwithstanding any other provision of this Agreement, and whether such Losses did losses or damages are foreseeable or unforeseeable, the Agent shall not result from be liable under any circumstances whatsoever for any (ia) breach by any actual material misstatement other party of securities law or omission other rule of any securities regulatory authority, (b) lost profits or (c) special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages.
9.04 Notwithstanding any other provision of this Agreement, any liability of the Agent shall be limited, in the Fund’s Registration Statementaggregate, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund amount of fees paid by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in Company to the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties Agent under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt 9.05 The provisions of notice of any actionthis Article 9 shall survive indefinitely, arbitrationincluding the removal of, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)resignation by, the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (Agent and the “Indemnifying Party”) notify the Indemnifying Party in writing termination of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderAgreement.
f. 9.06 The rights of indemnification provided in this section Agent shall retain the right not to act and shall not be exclusive of or affect any other rights liable for refusing to which any person may be entitled by contract or otherwise by law, act unless it has received clear instructions and/or documentation and sufficient time to give effect to such instructions and/or documentation. The Agent shall retain the right not to act and shall not protect be liable for refusing to act due to a lack of information or for any person against other reason whatsoever, the Agent, in its sole judgment, determines that such act might cause the Agent to be in non-compliance with any liability to which applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline. Further, should the Agent, in its sole judgment, determine at any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence time that the Agent acting under this Agreement has resulted in the performance Agent being in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline, then the Agent shall have the right to resign on 10 days written notice to the Company, provided (a) that the Agent's written notice shall describe the circumstances of such person’s duties or by reason of its reckless disregard of non-compliance; and (b) that if such person’s obligations and duties under this Agreementcircumstances are rectified to the Agent's satisfaction within such 10 day period, then such resignation shall not be effective.
Appears in 1 contract
Samples: Rights Agency and Custodial Agreement (Kingsway Financial Services Inc)
Liability and Indemnification. a. Except as expressly set forth None of the Servicer, the Special Servicer, the Trustee, the Note Administrator, the Operating Advisor nor their Affiliates nor any of the managers, members, directors, officers, employees or agents thereof shall be under any liability to either the Issuer or the Co-Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, in good faith pursuant to or in connection with this Agreement, absent or for errors in judgment; provided, however, that none of the Sub-Adviser’s material Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor or any such Person will be protected against any breach of its representations or warranties (if any) made in this Agreement or the any liability that would otherwise be imposed by reason of willful misconductmisfeasance, bad faithfaith or negligence in the performance of its duties hereunder. The Servicer, gross negligence the Special Servicer, the Note Administrator, the Trustee or reckless disregard the Operating Advisor, as the case may be, and any director, officer, manager, member, employee or agent thereof may rely in good faith on any document of the obligations or duties hereunder on the part of the Sub-Adviserany kind which, or its officersprima facie, directors, partners, agents, employees is properly executed and controlling personssubmitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the Sub-Adviser shall not be liable for any act Servicer, the Special Servicer, the Note Administrator, the Trustee or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of TrustOperating Advisor, as amended. The Sub-Adviser agrees that the case may be, and any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or member, manager, director, officer, employee or agent thereof shall be indemnified and held harmless by the Issuer and the Co-Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of such indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Co-Issuer, the Subordinate Class Representative, any Directing Holder, the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor authorized, requested or advised the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of the Fund willful misfeasance, bad faith, or negligence in the performance of the duties of the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s, the Trustee’s or the Operating Advisor’s, as the case may be, representations and warranties set forth in Section 7.01. Any such indemnification shall be payable from any amounts on deposit in the Collection Account (other than in the case of the Note Administrator and the Trustee) and pursuant to the Priority of Payments under the Indenture. In the event that the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Mortgage Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer shall promptly remit such overcharge to the related Obligor or other series Obligors after the Issuer’s receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of this indemnity, by reason of (i) the willful misfeasance, bad faith or negligence in the performance of the Trust.
c. The Sub-Adviser duties of the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as applicable, hereunder or (ii) a breach of the representations and warranties of the Servicer, the Special Servicer or the Operating Advisor set forth in Section 7.01. Each of the Servicer and the Special Servicer, severally and not jointly, shall indemnify and hold harmless each of the Fund Trustee and the Adviser Note Administrator from and each of their respective trusteesagainst any claims, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilitiespenalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses (includingincurred by the Trustee or the Note Administrator, without limitationas the case may be, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) that arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, fraud or willful misconduct on the part of the Servicer or gross negligence by the Sub-Adviser Special Servicer, as the case may be, in the performance of its obligations under this Agreement or its negligent disregard of its obligations and duties under this Agreement. Each of the Trustee and the Note Administrator, severally and not jointly, shall indemnify and hold harmless each of the Servicer and the Special Servicer from and against any claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses incurred by the Servicer or the Special Servicer, as the case may be, that arise out of or are based upon the negligence, bad faith, fraud or willful misconduct on the part of the Trustee or the Note Administrator, as the case may be, in the performance of its obligations under this Agreement or the Indenture or its negligent disregard of its obligations and duties under this Agreement or the reckless disregard Indenture. Each of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation Servicer, the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser Special Servicer and the Fund Operating Advisor shall indemnify be entitled to the Sub-Adviser same rights, protections, immunities and indemnities afforded to each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained herein in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission matter contained in the Fund’s Registration StatementIndenture. Neither the Servicer nor the Special Servicer shall be responsible for any delay or failure in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, any proxy statementstrikes, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form lockouts, riots and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance acts of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”war), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party delay or failure is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement also a result of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductown negligence, bad faith or gross negligence willful misconduct. Additionally, neither the Servicer nor the Special Servicer shall be liable for the actions or omissions of the Issuer, the Co-Issuer, the Directing Holder, the Trustee, the Note Administrator, the Servicer (in the performance case of such person’s duties the Special Servicer), the Special Servicer (in the case of the Servicer), and without limiting the foregoing, neither the Servicer nor the Special Servicer shall be under any obligation to verify compliance by any party hereto with the terms of the Indenture (other than itself) or to verify or independently determine the accuracy of information received by reason it from the Trustee or Note Administrator (or from any selling institution, agent bank, trustee or similar source) with respect to the Mortgage Loans or Mortgage Assets. The provisions of its reckless disregard this Section shall survive any termination of such person’s the rights and obligations and duties under this Agreementof the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor hereunder.
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Liability and Indemnification. a. A. Except as expressly set forth is otherwise required by the 1940 Act, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits principals, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActAdviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject at common law or otherwise, costs due to the Sub-Adviser’s willful misconduct, bad faith, fraud, reckless disregard, or gross negligence; provided however, the Sub-Adviser shall not indemnify or hold harmless the Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and expenses other expenses) due to (includingi) any breach by the Investment Adviser of a representation or warranty made herein or (ii) any willful misconduct, without limitationbad faith, reasonable attorneys’ fraud, reckless disregard or gross negligence of the Investment Adviser in the performance of any of its duties or obligations hereunder.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and accountants’ fees hold harmless the Sub-Adviser and disbursementsits managers, officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “LossesSub-Adviser Indemnitees”) insofar as such Losses against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or actions with respect theretootherwise, due to the Investment Adviser’s willful misconduct, bad faith, fraud, reckless disregard or gross negligence; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) arise out of or are based upon due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; of a representation or warranty made herein or (ii) the any willful misconduct, bad faith, willful misconduct fraud, reckless disregard or gross negligence by the of Sub-Adviser in the performance of any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust’s property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 E. No Trustee or shareholder of the Securities ActTrust shall be personally liable for any debts, from and against any Losses suffered liabilities, obligations or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
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Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActSub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each Prospectuses or Statements of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein. Except as may otherwise be provided by the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by other federal securities law, the Sub-Adviser shall indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including without limitation reasonable legal and other expenses) to which any of the StrategyFund Indemnitees may become subject at common law or otherwise, Governing Documents arising out of the Sub-Adviser’s action or Procedures inaction or based on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of made herein or (ii) any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of such person’s any of its duties or by reason obligations hereunder. Notwithstanding the foregoing, Fund shall not be deemed to have waived any right which, under applicable law, cannot be waived. No Trustee or shareholder of its reckless disregard of such person’s the Trust shall be personally liable for any debts, liabilities, obligations and duties or expenses incurred by, or contracted for under this Agreement. No Fund will be liable for any debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under this Agreement. This Section 7 shall survive the termination of this Agreement.
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Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or (a) North Track shall indemnify and hold Administrator and its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, from any and all claims, actions, suits, losses, claimscosts, damages, liabilitiesand expenses, costs and including reasonable expenses (includingfor counsel, without limitationincurred by it in connection with its acceptance of this Agreement, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement action or omission in the Fund’s Registration Statementby it or its employees, any proxy statementagents, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties hereunder to North Track, or as a result of acting upon any instruction believed by it to have been executed by a duly authorized agent of North Track or as a result of acting upon information provided by North Track in form and under this Agreement or the reckless disregard of its obligations or duties hereunderpolicies agreed to by Administrator and North Track; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategyprovided, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnershowever, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in to the Fund’s Registration Statementextent such claims, any proxy statementactions, suits, losses, costs, damages, or communication expenses relate solely to current one or prospective investors in more Funds, such indemnification shall be only out of the assets of that Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Advisergroup of Funds; (ii) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give North Track prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, North Track shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
(b) Administrator shall indemnify and hold harmless North Track from and against any and all claims, demands, expenses, and liabilities which North Track may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of North Track, or its other agents or contractors, and (ii) North Track shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of North Track In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
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Liability and Indemnification. a. Except as expressly set forth in this Agreement5.1. Magnetic Group, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees personnel and controlling persons, the Sub-Adviser its subcontractors shall not be liable for any act damage to, or omission in the course loss of, property of Customer including the aircraft, or connected with, rendering services hereunder injury or for any losses that may be sustained in the purchase, holding death or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust damage directly or any Trustees indirectly caused to Customer's or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits’ di- rectors, officers, employees, agents and shareholdersagents, and each personservants or third parties during or after, if anydue to, who controls the Fund or the Adviser within the meaning of Section 15 in connection with, or in consequence of the Securities Act performance or non- performance of 1933, as amended the Agreement (the “Securities Act”including third parties’ claims), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund unless caused solely by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful wilful misconduct or gross negligence by the Sub-Adviser in the performance of Magnetic Group or its duties under this Agreement or the reckless disregard of Subcon- tractors, and Customer shall defend, indemnify and hold harmless Magnetic Group, its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersdirectors, officers, employees and employees, agents, servants and each personsubcontractors against any and all such claims including costs and expenses incident thereto.
5.2. Customer, if anyits personnel and its subcontractors shall be liable for any damage to, who controls or loss of, property of Magnetic Group including any facility where the Sub-Adviser within the meaning of Section 15 aircraft or any part may be situated, or injury or death or any other damage directly or indi- rectly caused to Magnetic Group or its directors, officers, employees, agents, servants during or after, due to, or in connection with, or in consequence of the Securities Actperformance or non-performance of the Agreement (including third parties’ claims), from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund unless caused solely by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful wilful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementMag- netic Group.
e. Promptly after receipt of notice of any action5.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY, arbitrationMAGNETIC GROUP SHALL NEVER BE LIABLE FOR AND CUSTOMER HEREBY WAIVES, claimRE- LEASES AND RENOUNCES ALL RIGHTS AND CLAIMS AGAINST MAGNETIC GROUP TO THE FULLEST EXTENT PERMITTED BY LAW FOR ANY SPE- CIAL, demandINCIDENTAL, disputeCONSEQUENTIAL, investigationMULTIPLE, lawsuit or other proceeding PUNITIVE OR INDIRECT LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”INCLUDING WITH- OUT LIMITATION LOSS OF USE, REVENUE OR PROFIT, LOSS OF PRO- SPECTIVE ECONOMIC ADVANTAGE, LOSS OF CUSTOMERS, LOSS OF DA- TA, COSTS INCURRED AS A RESULT OF THE LEASE OF A SPARE AIR- CRAFT OR ITEM OR OTHER COSTS RESULTING FROM THE UNAVAILABIL- ITY OF AN AIRCRAFT OR ITEM, ACCOMMODATION AND COMPENSATION OF PASSENGERS, OR IMMATERIAL DAMAGE), the Indemnified Party willFOR ANY REASON WHAT- SOEVER AND WHETHER ARISING IN CONTRACT (INCLUDING XXXXXX- XX), if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided thatSTRICT LIABILITY, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderEQUITY, TORT, STATUTE OR OTHERWISE.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law5.4. IN ANY EVENT, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductMAGNETIC GROUP’S TOTAL LIABILITY FOR ANY AND ALL DEMANDS OR CLAIMS, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this AgreementFOR ANY DAMAGES CONNECTED WITH, OR RE- SULTING FROM THE PERFORMANCE OF ANY SERVICE WILL NOT EX- CEED THE PRICE ALLOCABLE TO THE SERVICE WHICH GAVE RISE TO SUCH DEMAND OR CLAIM.
Appears in 1 contract
Samples: General Terms of Service
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, Neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants shall not be liable for any act or omission in to the course ofAdviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or any controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsamended) (collectively, the “LossesFund Indemnitees”) insofar as for any claim, loss, liability or damage suffered by a Fund Indemnitee in connection with the subject matter of this Agreement howsoever any such Losses (claim, loss, liability or actions with respect thereto) arise out of damage may have occurred unless such claim, loss, liability or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by damage arises from the Sub-Adviser; ’s (iii) the own willful misfeasance, fraud, bad faith, willful misconduct faith or gross negligence by negligence, or to the Sub-Adviser in the performance reckless disregard of its duties under this Agreement or (ii) breach of fiduciary duty with respect to receipt of compensation for services, or as may otherwise be provided by the 1940 Act or under the provisions of other federal securities laws or applicable state law which cannot be waived or modified herein. The Sub-Adviser shall indemnify and hold harmless the Fund Indemnitees from and against any and all claims, losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) however arising from or in connection with the performance of the Sub-Adviser’s obligations under this Agreement to the extent resulting from or relating to Sub-Adviser’s own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of under this Agreement by Agreement. The Adviser shall indemnify and hold harmless the Sub-Adviser including without limitation the StrategyAdviser, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agentsemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities ActAct of 1933, as amended) from and against any Losses suffered and all claims, losses, liabilities or sustained damages (including reasonable attorney’s fees and other related expenses) however arising from or in connection with this AgreementAgreement (including, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statementwithout limitation, any proxy statement, claims of infringement or communication to current or prospective investors in misappropriation of the Fund relating to disclosure provided to the Adviser or the Fund by intellectual property rights of a third party against the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as or any affiliated person relating to any index or index data provided to Sub-Adviser by the Sub-Adviser or Adviser; (ii) the bad faith, willful misconduct or gross negligence ’s agent and used by the Sub-Adviser in connection with performing its duties under this Agreement); provided, however, that the performance Adviser’s obligation under this Section 6 shall be reduced to the extent that the claim against, or the loss, liability or damage experienced by the Sub-Adviser, is caused by or is otherwise directly related to the Sub-Adviser’s own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its duties under this Agreement. Notwithstanding anything to the contrary contained herein, no party to this Agreement shall be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Assets resulting from any event beyond the reasonable control of such party or its obligations agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or duties hereundersimilar action by any governmental authority, de facto or de jure; or (iii) enactment, promulgation, imposition or enforcement by any material breach such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, or any other similar event. In no event, shall any party be responsible for incidental, consequential or punitive damages hereunder. The provisions of this Agreement by Section shall survive the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in termination of this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (ETF Series Solutions)
Liability and Indemnification. a. Except as (a) The duties of the Sub-Adviser shall be confined to those expressly set forth in this Agreement, absent Section 1(b) hereof and the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Adviser expressly disclaims liability for any other duties. The Sub-Adviser shall not be liable for any act loss, damage, liability, cost or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended expense (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, including reasonable attorneys’ and accountants’ fees and disbursementsamounts paid in settlement) (collectively, “Losses”) insofar as such Losses (or actions arising in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration StatementBDC's activities, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by except a Loss resulting from the Sub-Adviser; (ii) the bad faith, ’s willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductmisfeasance, bad faith or gross negligence in the performance of such personits duties, or by reason of reckless disregard of its obligations and duties hereunder, except as may otherwise be provided under provisions of applicable state law which cannot be waived or modified hereby, in each case, as the same is finally determined by judicial proceedings. (As used in this Section 8(a), the term “Sub-Adviser” shall include, without limitation, its affiliates and the Sub-Adviser’s and its affiliates’ respective partners, shareholders, directors, members, principals, officers, managers, employees agents and controlling persons, including, without limitation, the Sub-Adviser’s managing member, each of which shall be deemed a third party beneficiary for purposes hereof). The Sub-Adviser shall indemnify the Adviser and BDC against any Loss arising from, or in connection with, the Sub-Adviser’s breach of the terms, representations and warranties herein or otherwise based upon the performance of the Sub-Adviser’s duties or obligations under this Agreement or as investment adviser of the BDC, including by reason of any pending, threatened or completed claim, action, suit, investigation or other proceeding or regulatory or self-regulatory inquiry (including an action or suit by or in the right of the BDC (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Sub-Adviser, including, without limitation, its manager); provided, however, that the Adviser shall not be indemnified for any Loss that is sustained as a result of the Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of the Adviser’s duties or by reason of its the reckless disregard of such personthe Adviser’s duties and obligations and duties under this Agreement, in each case, as the same is finally determined by judicial proceedings.
(b) The BDC shall indemnify the Sub-Adviser (as defined in Section 8(a)) for any Loss whatsoever, arising from, or in connection with, the Sub-Adviser’s performance of its obligations under this Agreement, and the Adviser shall indemnify the Sub-Adviser (as defined in Section 8(a)) against any Loss arising from, or in connection with, the Adviser’s breach of the terms, representations and warranties herein or otherwise based upon the performance of the Adviser’s duties or obligations under this Agreement or as investment adviser of the BDC, including by reason of any pending, threatened or completed claim, action, suit, investigation or other proceeding or regulatory or self-regulatory inquiry (including an action or suit by or in the right of the BDC or the Adviser (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Adviser, including, without limitation, its manager); provided, however, that the Sub-Adviser shall not be indemnified for any Loss that is sustained as a result of the Sub-Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of the Sub-Adviser’s duties or by reason of the reckless disregard of the Sub-Adviser’s duties and obligations under this Agreement, in each case, as the same is finally determined by judicial proceedings.
(c) With respect to any claim of indemnification hereunder, the BDC or the Adviser, as the case may be, shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if it receives a written undertaking to make reimbursement if it is finally judicially determined that such person is not entitled to indemnification, and if, in the case of advances by the BDC, a majority of the Independent Directors or an opinion of independent counsel determines, based on a review of readily available factors (as opposed to a trial determination) that there is reason to believe that the Sub-Adviser will ultimately be found to be entitled to indemnification.
(d) Nothing in this Section 8 shall be construed so as to provide for the indemnification of any party or any limitation on the liability of any party that would, in either case, be in violation of applicable law, but such provisions shall otherwise be construed so as to effectuate the provisions of this Section 8 to the fullest extent permitted by applicable law.
Appears in 1 contract
Samples: Interim Investment Sub Advisory Agreement (Griffin-Benefit Street Partners BDC Corp.)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent may otherwise be provided by the Sub-Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other federal securities law, the Sub-Adviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Investment Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The error of judgment or mistake of law by the Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon with respect to the Fund’s , except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability set forth in of the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund for, and that the Sub-Adviser shall not seek satisfaction indemnify and hold harmless the Trust, the Investment Manager, all affiliated persons thereof within the meaning of any such obligation from the shareholders Section 2(a)(3) of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund 1940 Act ("affiliated person") and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each personall persons, if anyany who, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities "1933 Act”"), againstcontrol ("controlling person") the Trust or the Investment Manager (collectively, and hold them harmless from"Investment Manager Indemnitees"), against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses to which any of the Investment Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the Investment Advisers Act of 1940, as amended (includingthe "Advisers Act"), without limitationthe Internal Revenue Code, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyunder any other statute, “Losses”) insofar as such Losses (law, rule or actions with respect thereto) arise regulation, at common law or otherwise, arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; 's responsibilities hereunder (iia) to the extent of and as a result of the willful misconduct, bad faith, willful misconduct or gross negligence by the Sub-Adviser Adviser, any of the Sub-Adviser's employees or representatives or any affiliate of or any person acting on behalf of the Sub-Adviser, or (b) as a result of any untrue statement or alleged untrue statement of a material fact contained in the performance of its duties under this Agreement Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund, including any amendment thereof or any supplement thereto, or the reckless disregard of its obligations omission or duties hereunder; alleged omission to state therein a material fact required to be stated therein or (iii) any material breach of this Agreement necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser including without limitation to the StrategyInvestment Manager, Governing Documents or Procedures the Trust or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 affiliated person of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser Investment Manager or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct Trust or gross negligence upon verbal information confirmed by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; writing, or (iiic) any material breach to the extent of, and as a result of, the failure of this Agreement by the Sub-Adviser including without limitation to execute, or cause to be executed, portfolio investment transactions according to the Strategyrequirements of the 1940 Act, Governing Documents or Procedures or any representation or warranty contained the Internal Revenue Code, the Registration Statement and the Board/Investment Manager Procedures; provided, however, that in this Agreement.
e. Promptly after receipt of notice no case is the Sub-Adviser's indemnity in favor of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking Investment Manager Indemnitee deemed to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of protect such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s 's duties or by reason of such person's reckless disregard of obligations and duties under this Agreement. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Sub-Adviser as a result of any error of judgment or mistake of law by the Investment Manager with respect to the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Investment Manager for, and the Investment Manager shall indemnify and hold harmless the Sub-Adviser, any affiliated person of the Sub-Adviser and each controlling person of the Sub-Adviser, if any, against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses), to which the Sub-Adviser or such affiliated person or controlling person of the Sub-Adviser may become subject under the 1933 Act, the 1940 Act, the Advisers Act, the Internal Revenue Code, under any other statute, law, rule or regulation, at common law or otherwise, arising out of the Investment Manager's responsibilities as investment manager of the Fund (a) to the extent of and as a result of the willful misconduct, bad faith, or gross negligence by the Investment Manager, any of the Investment Manager's employees or representatives or any affiliate of or any person acting on behalf of the Investment Manager, or (b) as a result of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund, including any amendment thereof or any supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Investment Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person's duties or by reason of its reckless disregard of such person’s 's obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (Goldman Sachs Variable Insurance Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations (a) Nothing contained herein shall be limited ----------------------------- deemed to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person you against any liability to the Trust or to the Trust's shareholders to which any such person you would otherwise be subject by reason of willful misconductmisfeasance, bad faith or gross negligence in the performance of such person’s your duties hereunder, or by reason of its your reckless disregard of such person’s your obligations and duties hereunder.
(b) You hereby agree to indemnify and hold harmless the Trust and its officers and Trustees against any and all losses, liabilities, damages and claims arising out of or based upon any untrue or alleged untrue statement or representation made (except for such statements made in reliance on any Registration Statement, Amendments thereto, or sales material supplied by the Trust), any failure to deliver a currently effective Prospectus, or the use of any unauthorized sales literature by any of your officers, employees or agents in connection with the offer or sale of Fund shares. You shall reimburse each such person for any legal or other expenses reasonably incurred in connection with investigating or defending any such loss, liability, damage or claim.
(c) If a claim for indemnification is to be made against you by a party entitled to indemnification under this Agreementsection ("indemnified party"), such indemnified party will promptly notify you in writing of the commencement of any action in which indemnification may be sought, and the omission to so notify you will not relieve you from any liability under this section, except to the extent that the omission results in a failure of actual notice to you and you are damaged solely as a result of the failure to give such notice.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this to the obligations specifically required of the Seller Representative under the Agreement and the Escrow Agreement, absent the Sub-Adviser’s material breach Seller Representative shall not be responsible for the obligations of this Agreement the Acquired Companies or be obligated to the willful misconductBuyer for Damages, except to the extent the Seller Representative is also a Clayco Stockholder and except for his bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser willful misconduct. The Seller Representative shall not be liable to the Clayco Stockholder with respect to any action taken or suffered by him in reliance upon any notice, direction, instruction, consent or statement or other paper or document believed by him to be genuine and duly authorized, nor for any act anything except his bad faith, gross negligence or omission willful misconduct. All conduct of the Seller Representative shall be undertaken in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of good faith and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trusthe shall not, as amended. The Sub-Adviser agrees that the result of his acting as the Seller Representative, be responsible for the validity, enforceability or collectability of any of the Fund’s obligations of any of the other parties to the Agreement, the Clayco Closing Documents or the Seller Representative Escrow Agreement. The Seller Representative shall be limited entitled to indemnification from and be held harmless by the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of Clayco Stockholder against any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerloss, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended expense (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, including reasonable attorneys’ and accountants’ fees and disbursementsfees) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise other liability arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementhis service as Seller Representative under this Appointment of Representative, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund other than for harm directly caused by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the his bad faith, willful misconduct or gross negligence by or willful misconduct, and in such event he shall be entitled to payment thereof from the Sub-Adviser in the performance of its duties under this Seller Representative Escrow Agreement or the reckless disregard Escrow Fund out of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided amounts otherwise payable to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementClayco Stockholder.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Enterprise Financial Services Corp)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Neither Sub-Adviser nor any of its directors, officers or employees shall not be liable subject to liability to the Adviser, the Trust or the Funds or to any shareholder of the Funds for any error of judgment or mistake of law or any other act or omission in the course of, or connected with, rendering services hereunder or hereunder, for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Subsecurity by the Funds, or as a result of any activities of Adviser or any other sub-adviser appointed by the Adviser acknowledges to provide investment management services to the Funds, provided that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations nothing herein shall be limited construed to the assets of the Fund and that protect the Sub-Adviser shall not seek satisfaction or any director, officer or employee of Sub-Adviser in the event of (i) Sub-Adviser’s material breach of this Agreement, willful misfeasance, bad faith, gross negligence, or reckless disregard of its obligations or duties hereunder or (ii) any untrue statement of a material fact (or an omission of such obligation from statement) contained in the shareholders Prospectus, registration statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Sub-Advised Portion or the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund and the Adviser by the Sub-Adviser or any director, officer, agent or employee of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. Sub-Adviser for use therein. The Sub-Adviser shall indemnify and hold harmless the Fund and Adviser, the Adviser Funds, and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser its affiliated persons (within the meaning of Section 2(a)(3) of the Investment Company Act) all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended), againstofficers, directors, trustees, and hold them harmless fromemployees (each, an “Adviser Indemnified Party”) from and against any and all losses, claims, damageslosses, liabilities, costs and expenses costs, expenses, or damages (including, without limitation, including reasonable attorneys’ and accountants’ attorney’s fees and disbursementsother related expenses) (collectively, “Losses”) insofar as such Losses (however arising from or actions in connection with respect thereto) arise out the performance of the Sub-Adviser’s obligations under this Agreement to the extent resulting from or are based upon relating to (i) Sub-Adviser’s material breach of this Agreement, willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its duties under this Agreement; or (ii) any actual untrue statement of a material misstatement fact (or an omission of such statement) contained in the Fund’s Registration StatementProspectus, any proxy registration statement, proxy materials, reports, advertisements, sales literature or communication other materials pertaining to current the Sub-Advised Portion or prospective investors the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund relating to disclosure provided to the and Adviser or the Fund by the Sub-Adviser or any director, officer, agent or employee of the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents use therein. Neither the Adviser (including its directors, officers and employees) nor the Funds shall be subject to liability to the Sub-Adviser for any error of judgment or mistake of law by the Adviser, pertaining to the Funds, provided that nothing herein shall be construed to protect the Adviser (including its directors, officers and employees) or the Fund in the form and context as provided by event of (i) the Adviser’s material breach of this Agreement (including any failure to pay the Sub-Adviser; ’s compensation as provided herein, which shall be deemed a material breach of this Agreement), willful misfeasance, bad faith, gross negligence, or reckless disregard of its obligations hereunder or (ii) any untrue statement of a material fact (or an omission of such statement) contained in the bad faithProspectus, willful misconduct registration statement, proxy materials, reports, advertisements, sales literature or gross negligence other materials unless such statement was made in reliance on information furnished to the Fund and the Adviser by the Sub-Adviser in the performance or any director, officer, agent or employee of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. for use therein. The Adviser and the Fund shall indemnify and hold harmless the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser affiliated persons (within the meaning of Section 15 2(a)(3) of the Securities Investment Company Act), officers, directors, trustees, and employees (each, a “Sub-Adviser Indemnified Party”) from and against any Losses suffered and all claims, losses, liabilities, costs, expenses or sustained damages (including reasonable attorney’s fees and other related expenses) however arising from or in connection with this Agreement, provided that such Losses did not result Agreement except to the extent solely resulting from (i) Sub-Adviser’s material breach of this Agreement, own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its duties under this Agreement; or (ii) any actual untrue statement of a material misstatement fact (or an omission of such statement) contained in the Fund’s Registration StatementProspectus, any proxy registration statement, proxy materials, reports, advertisements, sales literature or communication other materials pertaining to current the Sub-Advised Portion or prospective investors the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund relating to disclosure provided to and the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faithor any director, willful misconduct officer, agent or gross negligence by employee of the Sub-Adviser in for use therein. Notwithstanding anything to the performance of contrary contained herein, no party to this Agreement shall be responsible or liable for its duties failure to perform under this Agreement or for any losses to the reckless disregard Sub-Advised Portion resulting from any event beyond the reasonable control of such party or its obligations agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or duties hereundersimilar action by any governmental authority, de facto or de jure; or (iii) enactment, promulgation, imposition or enforcement by any material breach such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Sub-Advised Portion; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, pandemic, or any other similar event. In no event, shall any party be responsible for incidental, consequential or punitive damages hereunder. No provision of this Agreement by shall be construed to protect any director or officer of the Adviser or Sub-Adviser including without limitation from liability in violation of Sections 17(h) or (i) of the Strategy, Governing Documents or Procedures or any representation or warranty contained in 1940 Act. The provisions of this Section 8 shall survive the termination of this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Emerge ETF Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent may otherwise be provided by the Sub-Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other federal securities law, the Sub-Adviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-error of judgment or mistake of law by the Adviser acknowledges with respect to the Portfolio, except that it has received notice of and accepts nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to Adviser for, and the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify and hold harmless the Fund and Trust, the Adviser and each of their respective trusteesManager, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all controlling persons (as described in Section 15 of the Securities Act of 19331933 Act) (collectively, as amended (the “Securities Act”), against, and hold them harmless from, "Manager Indemnitees") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Manager Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe 1940 Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) insofar as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon on (i) any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or obligations hereunder, (ii) any untrue statement of a material fact related to the reckless disregard description of its obligations or duties hereunder; the Adviser contained in the Registration Statement or (iii) any material breach violation of the Portfolio's investment policies as described in the Registration Statement.
b. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser as a result of any error of judgment or mistake of law by the Manager with respect to the Portfolio, except that nothing in this Agreement by shall operate or purport to operate in any way to exculpate, waive or limit the Sub-Adviser including without limitation liability of the StrategyManager for, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund Manager shall indemnify and hold harmless the Sub-Adviser and each of its partnersAdviser, officers, employees and agents, and each person, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities 1933 Act) (collectively, "Adviser Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, from and against the 1940 Act, the Advisers Act, or under any Losses suffered other statute, at common law or sustained in connection with this Agreement, provided that such Losses did not result from otherwise arising out of or based on (i) any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser Manager in the performance of any of its duties under this Agreement or obligations hereunder, (ii) any failure by the reckless disregard Manager to properly notify the Adviser of its obligations changes to the Registration Statement or duties hereunder; any Charter Requirements that leads to any such losses, claims, damages, liabilities or litigation to which any of the Adviser Indemnitees may be subject or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
e. Promptly after receipt of notice of any actionthe Registration Statement, arbitrationproxy materials, claimreports, demandadvertisements, disputesales literature, investigation, lawsuit or other proceeding (each materials pertaining to the Portfolio or the omission to state therein a “Proceeding”) by a party seeking material fact known to the Manager which was required to be indemnified under Section 9(c) stated therein or 9(d) (necessary to make the “Indemnified Party”)statements therein not misleading, the Indemnified Party will, if a claim unless such statement or omission was made in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have reliance upon information furnished to the Indemnified Party; provided that such party is not materially prejudiced Manager or the Trust by such failure to notify. No Indemnifying Party shall be liable under this section an Adviser Indemnitee for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderuse therein.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Advisory Agreement (Met Investors Series Trust)
Liability and Indemnification. a. Except (a) Landlord shall not be liable to Tenant or its directors, shareholders, partners, trustees, members, agents, contractors, subcontractors, employees, licensees, servants, and invitees and all persons and entities claiming through any of these persons or entities (collectively and as expressly set forth in this Agreementapplicable, absent "Tenant Party(ies)"), or any person whomsoever, for any injury to person or damage to property on or about the Sub-Adviser’s material breach of this Agreement or Premises caused by the willful misconduct, bad faith, gross negligence or reckless disregard willful misconduct of Tenant or any Tenant Party; and Tenant agrees to indemnify Landlord and hold it harmless from any loss, claim, damage, cost or expense suffered or incurred by Landlord by reason of any such damage or injury.
(b) Landlord and Landlord's agents and employees shall not be liable to Tenant or any Tenant Party for any injury to person or damage to property caused by the obligations Premises (or duties hereunder on the part any portion thereof) becoming out of the Sub-Adviserrepair or by defect in or failure of equipment, pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the Premises, nor shall Landlord be liable to Tenant or any Tenant Party for any loss or damage that may be occasioned by or through the acts or omissions of any other persons whomsoever, excepting only duly authorized employees and agents of Landlord.
(c) Tenant shall indemnify, defend, and hold Landlord and its authorized representatives and their respective officers, directors, shareholders, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officersagents, employees, agents and shareholdersproperty manager, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any contractors and all persons and entities through any of these persons or entities (collectively and as applicable, "Landlord Party(ies)") harmless from all fines, suits, losses, costs, liabilities, claims, damagesdemands, liabilitiesactions, costs and expenses judgments of every kind and character (collectively, "Claims") INCLUDING THOSE CLAIMS RESULTING SOLELY OR IN PART FROM THE NEGLIGENCE OF ANY LANDLORD PARTY (BUT EXCEPTING THOSE CLAIMS RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY LANDLORD PARTY) arising out of or relating (directly or indirectly) to this Lease, the tenancy created under this Lease or the Premises, including, without limitation:
(1) any breach or default in performance of any obligation on Tenant's part to be performed under this Lease, whether before or during the term of this Lease or after its expiration or earlier termination;
(2) any act, omission, negligence, or misconduct of any Tenant Party, or of any other person entering upon the Premises under or with the express or implied invitation or permission of Tenant;
(3) any alterations, activities, work, or things done, permitted, allowed, or suffered by Tenant Parties in, at, or about the Premises, including the violation by any Tenant Party of any Applicable Laws (including, without limitation, reasonable attorneys’ the Access Laws); and
(4) the occupancy or use by any Tenant Party of the Premises.
(d) Tenant shall indemnify, defend, and accountants’ fees hold all Landlord Parties harmless from any Claim for damage to the Improvements or Tenant's personal property, fixtures, furniture, and disbursementsequipment in the Premises (INCLUDING THOSE CLAIMS RESULTING SOLELY OR IN PART FROM THE NEGLIGENCE OF ANY LANDLORD PARTY (BUT EXCEPTING THOSE CLAIMS RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY LANDLORD PARTY)), to the extent that the damage is covered by ISO Special Form Property Insurance (including any deductible) (collectively, “Losses”) insofar as such Losses that Tenant is required to carry under this Lease (or actions with respect theretowould have been covered had Tenant carried the insurance required under the provisions of this Lease).
(e) arise out If any Landlord Party is made a party to any litigation commenced against any Tenant Party or relating to this Lease or to the Premises, then Tenant shall pay all costs and expenses, including attorneys' fees, court costs and expenses, incurred by or imposed upon the Landlord Party by virtue of the litigation. The amount of all costs and expenses, including attorneys' fees, court costs and expenses is a demand obligation payable by Tenant to Landlord as additional Rent bearing interest at the lower of 18% per annum or are based upon the maximum legal contract rate from the date of payment by Landlord until paid by Tenant.
(if) any actual material misstatement or omission in the Fund’s Registration StatementIf an employee (full-time, any proxy statementpart-time, or communication temporary) of Tenant suffers an injury at the Premises, Tenant shall cause the injured employee to current exhaust all rights under the applicable Workers' Compensation Laws before any claim arising from the injury is asserted against any other party. Tenant shall indemnify, defend, and hold Landlord Parties harmless from any and all Claims suffered by Landlord Parties arising from any injury(ies) to any of Tenant's employees or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; any other Tenant Parties.
(iig) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach The provisions of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of survive the Securities Act, from and against any Losses suffered expiration or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach earlier termination of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in Lease. The indemnification provisions of this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section 15 shall not be exclusive of construed or affect interpreted as in any way restricting, limiting, or modifying Tenant's insurance or other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this AgreementLease and is independent of Tenant's insurance and other obligations under this Lease.
Appears in 1 contract
Samples: Contract of Sale (Ultrak Inc)
Liability and Indemnification. a. Except as expressly set forth A. Notwithstanding anything to the contrary contained in this Agreement, absent except as may otherwise be provided by the 1940 Act or any other federal securities law, in the absence of willful misconduct, bad faith or gross negligence on the Sub-Adviser’s material breach 's part in the performance of its duties under this Agreement Agreement, neither the Sub-Adviser nor any of its shareholders, partners, officers, directors, trustees, employees, agents, consultants or affiliates (its “Affiliates”) shall be liable for any error of judgment or mistake of law or for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser, the Fund or the willful misconductTrust or its or their shareholders, bad faithpartners, gross negligence officers, directors, trustees, employees or reckless disregard of agents, for any action or inaction taken in good faith by the obligations Sub-Adviser or duties hereunder on its Affiliates with respect to the part of Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, against, and hold them harmless from, “Sub-Adviser Indemnitees”) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to the extent due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersProspectus or SAI, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reasonable reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the performance 1940 Act or any other federal securities law, the Investment Adviser and the Sub-Adviser shall each, severally and not jointly, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its duties obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable (including for indemnification obligations) for its failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser or its agents, including without limitation but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the StrategyTrust’s property; or the breakdown, Governing Documents failure or Procedures malfunction of any utilities or telecommunications systems; or any representation order or warranty contained regulation of any banking or securities industry including changes in this Agreementmarket rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit E. No Trustee or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing shareholder of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party Trust shall be personally liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of debts, liabilities, obligations or affect any other rights to which any person may be entitled by contract expenses incurred by, or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties contracted for under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach No Venturer nor any of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserits members, or its their respective officers, shareholders, directors, partners, agentsDesignated Persons, employees and controlling persons, the Sub-Adviser or agents shall not be liable to the Venture or any Venturer for any loss or liability incurred in connection with any act or omission in the course ofconduct of the business of the Venture in accordance with the terms hereof, or connected with, rendering services hereunder or except for any losses that may be sustained loss or liability which the Venture or Venturer incurs in the purchaseconnection with such person's or entity's fraud, holding willful and wanton misconduct or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amendedgross negligence. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Venture, to the assets of the Fund fullest extent permitted by law, hereby agrees to defend and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund indemnifies and the Adviser holds harmless each Venturer and each of its members and their respective trustees, members, officers, employeesdirectors, agents and shareholders, Designated Persons, employees and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, agents from and hold them harmless from, against any and all lossesliability, claimsloss, damagescost, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (expense or actions with respect thereto) arise out damage incurred or sustained by reason of or are based upon (i) any actual material misstatement act or omission in the Fund’s Registration Statementconduct of the business of the Venture in accordance with the terms hereof including, but not limited to, reasonable attorneys' and paralegals' fees through any proxy statementand all negotiations, and trial, appellate, bankruptcy and collection levels; provided, however, the Venture shall not indemnify such person or communication entity or hold it harmless with respect to current any of the foregoing incurred in connection with such person's or prospective investors entity's fraud, willful and wanton misconduct or gross negligence. Notwithstanding the foregoing, the Venture shall advance, on behalf of any Venturer against whom a claim is filed with respect to any alleged act or omission in the Fund relating conduct of the business of the Venture, all costs and expenses of litigation, including reasonable attorneys' and paralegals' fees through any and all negotiations, at trial, appellate, bankruptcy and collection levels, and will be entitled to disclosure provided seek reimbursement from the Venturer for such sums advanced only to the Adviser extent such Venturer is ultimately determined, by a final non-appealable order or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faithjudgment, to have been guilty of fraud, willful or wanton misconduct or gross negligence and only to the extent the Venture is not reimbursed by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach insurance policies with respect to such costs and expenses. The provisions of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in Section 4.4 shall survive termination of this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth for any claims, rights of recovery and causes of action that Tenant has released, Landlord shall hold Tenant harmless and defend Tenant against any and all claims or liability for any injury or damage to any person in, on or about the Premises, when such injury or damage shall be caused by an affirmative act of negligence by such landlord, its agents, servants and employees (unless the indemnified loss is causes wholly or in part by Tenant's or any other party's negligence, in which event this Agreementindemnity shall not apply to the allocable share of such loss resulting from Tenant's or such other party's negligence). Except for any claims, absent the Sub-Adviser’s material breach rights of this Agreement or the willful misconductrecovery and causes of action that Landlord has released, bad faithTenant shall indemnify, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserprotect, or hold harmless and defend Landlord, its officersagents, employees, contractors, partners, directors, partners, agents, employees officers and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any affiliates of the Fund’s obligations shall be limited to above-mentioned parties (collectively the assets of the Fund "LANDLORD AFFILIATES") from and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, against any and all obligations, suits, losses, claimsjudgments, actions, damages, liabilities, costs and expenses claims or liability (including, without limitation, reasonable all costs, attorneys’ ' fees, and accountants’ fees and disbursementsexpenses incurred in connection therewith) in connection with any loss, injury or damage (i) to any person or property whatsoever occurring in, on or about the Project, when such injury or damage shall be caused by the act, neglect, fault of, or omission of any duty with respect to the same by Tenant, its agents, servants, employees, or invitees (ii) arising from the conduct of management of any work done by or for Tenant in or about the Project, (iii) arising from transactions of the Tenant, or (iv) arising from a breach, violation or non-performance of any term, provision, covenant or agreement of Tenant hereunder, or a breach or violation by Tenant of any court order or any law, regulation, or ordinance of any federal, state or local authority (collectively, “Losses”) insofar as the "LOSSES"). If any claim is made against Landlord or Landlord Affiliates, Tenant, at its sole cost and expense, shall defend any such Losses (claim, suit or actions with respect thereto) arise out of proceeding by or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication through attorneys satisfactory to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach Landlord. The provisions of this Agreement by PARAGRAPH 16 shall survive the Sub-Adviser including without limitation the Strategy, Governing Documents expiration or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach termination of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Lease with respect to which indemnity may be sought hereunderany claims or liability occurring prior to such expiration or termination.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Industrial Sublease Agreement (Advanced Materials Group Inc)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the Absent willful misconductmisfeasance, bad faith, gross negligence negligence, or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviseradviser, or its officers, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser shall not adviser nor any of the Sub-adviser Indemnified Parties (as defined below) will be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionsecurity or the entering into of any transaction or for any Losses (as defined below) arising out of any Proceedings (as defined below).
b. The Sub-Adviser adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of TrustLimited Liability Company Agreement, as amended. The Sub-Adviser adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser adviser shall not seek satisfaction of any such obligation from the shareholders unit holders of the Fund nor from any other series member, officer or employee of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustFund.
c. The Sub-Adviser adviser shall indemnify the Fund and Fund, the Adviser Adviser, and each of their respective trusteesaffiliates, membersagents, directors, members of the Board, officers, employees and shareholders (the “Adviser Indemnified Parties”) against, and hold them harmless from, any costs, expense, claim, loss, liability, judgment, fine, settlement or damage (including reasonable legal and other expenses) (collectively, “Losses”) arising out of any claim, demands, actions, suits or proceedings (civil, criminal, administrative or investigative) asserted or threatened to be asserted by any third party (collectively, “Proceedings”) in so far as such Loss (or actions with respect thereto) (i) arises directly out of or is based directly upon any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, in information furnished in writing to the Adviser by the Sub-adviser for use in the Fund’s Confidential Private Placement Memorandum, Registration Statement, Fund Marketing Materials or regulatory filings; (ii) arises directly out of or is based directly upon any material breach of any of the representations, warranties, covenants or obligations of the Sub-adviser with respect to this Agreement (unless such breach is caused by one of the Adviser Indemnified Parties); or (iii) arises directly out of or is based directly upon the willful misfeasance, bad faith, gross negligence or reckless disregard of duties of the Sub-adviser in the performance of its duties under this Agreement (subsections (i), (ii) and (iii) collectively referred to herein as the “Sub-adviser’s Disqualifying Conduct”).
d. The Fund and the Adviser shall, jointly and severally, indemnify the Sub-adviser and the Sub-adviser’s officers, directors, partners, agents, employees, agents controlling persons, shareholders and shareholdersany other person or entity affiliated with the Sub-adviser (collectively, the “Sub-adviser Indemnified Parties” and, together with the Adviser Indemnified Parties, the “Indemnified Parties”) against, and hold such Sub-adviser Indemnified Parties harmless from, any and all Losses from any Proceedings arising in connection with the Sub-adviser serving as the sub-adviser of the Fund; provided, however, that no such indemnification will be provided to the Sub-adviser Indemnified Parties for any Losses arising as a result of Sub-adviser Disqualifying Conduct. The Adviser shall indemnify each affiliated person (as defined by the 0000 Xxx) of the Sub-adviser (and each affiliated person of such a person, if any, ) who controls may be deemed to be a controlling person (as defined by the Fund or the Adviser 1940 Act and/or within the meaning of Section 15 of the Securities Act of 1933, as amended (the "1933 Act")) of the Fund (each such person, a “Securities ActControlling Person”), ) against, and hold them each Controlling Person harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) Losses insofar as such Losses arise in connection with any Proceeding based on any such person’s status as a Controlling Person and relate to any violation (or actions with respect theretoan alleged violation) arise out of or are based upon the federal securities laws; provided that (i) such Controlling Person has not otherwise received payment for such Losses under any actual insurance policy, contract, agreement or otherwise; (ii) such Losses are not the direct result of such Controlling Person’s willful misfeasance, bad faith, gross negligence, or untrue statement of a material misstatement fact or omission of a material fact necessary in order to make the Fund’s Registration Statementstatements made, any proxy statementin light of the circumstances under which they were made, or communication not misleading, in information furnished in writing to current or prospective investors in the Fund relating to disclosure provided to or the Adviser or the Fund by the Sub-Adviser adviser for inclusion in such documents where such disclosure was actually included in such documents use in the form Registration Statement, the Confidential Private Placement Memorandum or Fund Marketing Materials; and context as provided by (iii) such Losses are not the result of the Sub-Adviseradviser’s Disqualifying Conduct. To the extent that a Controlling Person is entitled to indemnification pursuant to the second sentence of this sub-section d. in connection with any Proceeding, such indemnification shall take precedence over indemnification by the Fund or the Adviser of any person (including the indemnification of any Controlling Person) pursuant to the first sentence of this sub-section d. in connection with the same Proceeding.
e. In the event that any party hereto is or becomes a party to any action or proceeding in respect of which it may be entitled to seek indemnification hereunder (“indemnitee”), the indemnitee shall promptly notify any other party from whom the indemnitee may seek indemnification hereunder (“indemnitor”); (ii) provided that failure by the indemnitee to give such notice shall not relieve indemnitor from any of its obligations hereunder, except to the extent that failure by the indemnitee to give such notice prejudices the indemnitor. The indemnitor shall be entitled to participate in any such suit or proceeding and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to the indemnitee. Notwithstanding the preceding sentence, the indemnitee shall be entitled to employ counsel separate from the indemnitor’s counsel and from any other party in such action if the indemnitee determines in good faith that a conflict of interest exists which makes counsel chosen by the indemnitor not advisable or if the indemnitee reasonably determines that the indemnitor’s assumption of the defense does not adequately represent the indemnitee’s interest. In such event the indemnitor will pay the fees and disbursements of such separate counsel, but in no event shall the indemnitor be liable for the fees and expenses of more than one counsel for the indemnitee in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
f. The termination of a Proceeding by settlement or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an indemnitee’s acts, omissions or alleged acts or omissions were primarily attributable to the bad faith, gross negligence or willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementsuch indemnitee.
d. g. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party indemnitor shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section hereunder for any settlement of any Proceeding entered into action or claim effected without its written consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section thereto and such consent shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementunreasonably withheld.
Appears in 1 contract
Samples: Sub Advisory Agreement (ASGI Corbin Multi-Strategy Fund, LLC)
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreementthe absence of willful misconduct, absent fraud, reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Adviser’s material breach of this Agreement , the Fund or the willful misconductTrust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the “Securities Act”)collectively, against, and hold them harmless from, "Sub-Adviser Indemnitees") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each Prospectuses or Statements of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein. Except as may otherwise be provided by the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by other federal securities law, the Sub-Adviser shall indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, "Fund Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including without limitation reasonable legal and other expenses) to which any of the StrategyFund Indemnitees may become subject at common law or otherwise, Governing Documents arising out of the Sub-Adviser's action or Procedures inaction or based on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of made herein or (ii) any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of such person’s any of its duties or by reason obligations hereunder. Notwithstanding the foregoing, Fund shall not be deemed to have waived any right which, under applicable law, cannot be waived. No Trustee or shareholder of its reckless disregard of such person’s the Trust shall be personally liable for any debts, liabilities, obligations and duties or expenses incurred by, or contracted for under this Agreement. No Fund will be liable for any debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under this Agreement. This Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except 9.1. Parent Indemnity Parent agrees, to the fullest extent permitted by applicable Laws, to indemnify and hold harmless the Company and each Sublicensee or Services Recipient, as expressly set forth in this Agreementthe case may be applicable, absent the Sub-Adviser’s material breach and any of this Agreement or the willful misconducttheir respective directors, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directorsagents, members, partners, agents, stockholders and employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any other representatives of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerCompany Group (each, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the a “Securities ActCompany Indemnified Party”), againston demand, and hold them harmless fromon an after-tax basis without any withholding or deduction, from and against any and all claims, liabilities, losses, claims, damages, liabilities, costs and or expenses (includingincluding legal fees) payable to third parties (each, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, a “LossesLoss”) insofar as such Losses (or actions incurred by any Company Indemnified Party in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement falsehood, breach or omission in the Fund’s Registration Statement, inaccuracy of any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually representations and warranties included in such documents in the form and context as provided by the Sub-Adviser; Section 8.1, (ii) any breach by Parent of any of its obligations, undertakings and covenants under this Agreement, and/or (iii) any claims brought by any employees of Parent against a Company Identified Party in respect of their potential requalification as employees of the Company Group; provided that no Company Indemnified Party shall be so indemnified with respect to any Loss (i) arising as a result of breach by the Company of any of its representations and warranties in Section 8.2, (ii) arising as a result of the exercise of Parent’s rights and obligations under this Agreement, (iii) that is finally determined by a final and non-appealable judgment entered by a court of competent jurisdiction, or pursuant to a settlement agreement agreed to by such Company Indemnified Party, to have resulted from such Company Indemnified Party’s bad faith, fraud, willful misconduct or gross negligence by the Sub-Adviser or, in the performance case of its duties under this Agreement or a criminal matter, conduct undertaken with knowledge that the reckless disregard of its obligations or duties hereunder; conduct was unlawful, or (iiiiv) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if involves a claim in respect thereof for which Parent is entitled to be made against a party against whom indemnification is sought under from the Company pursuant to Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder9.2.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sponsorship and Services Agreement (Codere Online Luxembourg, S.A.)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the Absent willful misconductmisfeasance, bad faith, gross negligence negligence, or reckless disregard of the Sub-adviser's obligations or duties hereunder on the part of the Sub-Adviser(collectively, or its officers, directors, partners, agents, employees and controlling persons"Disabling Conduct"), the Sub-Adviser adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionsecurity or the entering into of any transaction. Subject to the foregoing, nothing herein shall constitute a waiver of any rights or remedies that the Fund may have under any federal or state securities laws.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser adviser shall indemnify the Fund and Fund, the Adviser Adviser, and each of their respective trustees, membersManagers, officers, employees, shareholders, agents and shareholdersany other person or entity affiliated with the Adviser, against, and each personhold them harmless from, if anyany costs, who controls expense, claim, loss, liability, judgment, fine, settlement or damage (including reasonable legal and other expenses) (collectively, "Losses") arising out of any claim, demand, action, suit or proceeding (civil, criminal, administrative or investigative) asserted or threatened to be asserted by any third party (collectively, "Proceedings") in so far as such Loss (or actions with respect thereto) (i) arises out of or is based upon or in connection with any material misstatement or omission of a material fact in information regarding the Sub-adviser furnished in writing to the Adviser or the Fund by the Sub-adviser; (ii) arises out of or is based upon any material breach of any of the representations or obligations of the Sub-adviser under this Agreement; or (iii) arises out of or is based upon the Sub-adviser's Disabling Conduct.
c. The Fund (to the extent permitted by applicable law) and the Adviser within shall indemnify the meaning of Section 15 of Sub-adviser and the Securities Act of 1933Sub-adviser's officers, as amended (directors, partners, agents, employees, controlling persons, shareholders and any other person or entity affiliated with the “Securities Act”), Sub-adviser against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) from any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by Proceedings arising from the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties adviser's providing services under this Agreement or the reckless disregard sale of its obligations securities of the Fund, except where the Sub-adviser would be obligated to indemnify the Fund or duties hereunderthe Adviser under Section 6(b) hereof.
d. Notwithstanding anything herein to the contrary, the Sub-adviser shall not be responsible for, and shall be indemnified by the Fund and the Adviser from, (i) any liability with respect to or arising from investment of the Fund's assets in the sub-trusts of the HFR Umbrella Trust (collectively, the "HFR Trusts") that are not or have not been recommended by the Sub-adviser for investment by the Fund (provided that, the Sub-adviser shall be deemed to have recommended investment of the Fund's assets in each of the HFR Trusts that is not recommended by the Sub-adviser for withdrawal and not included by the Sub-adviser on a termination report for the Fund before March 31, 2012); (ii) any Losses (or actions with respect thereto) arising in connection with the Fund's investment operations, or actions by the Adviser or the Fund, prior to the effective date of this Agreement, including investments, operations, or actions prior to the effective date of this Agreement that continue in force and effect after the effective date of this Agreement; (iii) any material breach liability with respect to the charges or fees, or the acts, omissions, or other conduct of this Agreement the Fund's custodians, broker-dealers, administrators or other service providers (if any); or (iv) any loss that the Fund may suffer by reason of any investment decision made or other action taken or omitted in good faith by the Sub-Adviser including without limitation adviser and arising from the Strategy, Governing Documents Sub- adviser's adherence to the Investment Guidelines or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, other instructions from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by Fund, except where the Sub-adviser would be obligated to indemnify the Fund or the Adviser for inclusion under Section 6(b) hereof and as otherwise provided by applicable law, including the Advisers Act.
e. In the event that any party hereto is or becomes a party to any action or proceeding in respect of which it may be entitled to seek indemnification hereunder ("Indemnitee"), the Indemnitee shall promptly notify any other party from whom the Indemnitee may seek indemnification hereunder ("Indemnitor"). The Indemnitor shall be entitled to participate in any such suit or proceeding and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. Notwithstanding the preceding sentence, the Indemnitee shall be entitled to employ counsel separate from the Indemnitor's counsel and from any other party in such documents where action if the Indemnitee determines in good faith that a conflict of interest exists which makes counsel chosen by the Indemnitor not advisable or if the Indemnitee reasonably determines that the Indemnitor's assumption of the defense does not adequately represent the Indemnitee's interest. In such disclosure was actually included event the Indemnitor will pay the fees and disbursements of such separate counsel, but in such documents no event shall the Indemnitor be liable for the fees and expenses of more than one counsel for the Indemnitee in connection with any one action or separate but similar or related actions in the form and context as provided same jurisdiction arising out of the same general allegations or circumstances.
f. The termination of a Proceeding by the Sub-Adviser; (ii) settlement or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee's acts, omissions or alleged acts or omissions were primarily attributable to the bad faith, gross negligence or willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party Indemnitee. The Indemnitor shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section hereunder for any settlement of any Proceeding entered into action or claim effected without its written consent with respect to which indemnity may be sought hereunderthereto.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (ASGI Mesirow Insight Fund, LLC)
Liability and Indemnification. a. Except as expressly set forth AMICUS shall indemnify, defend and hold harmless MSSM and its trustees, officers, directors, medical and professional staff, employees, students and agents and their respective successors, heirs and assigns (the “Indemnitees”), against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments: (i) arising out of the production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by AMICUS or by a licensee, Affiliate or agent of AMICUS of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement, absent or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. AMICUS’s indemnification under subsection a(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the Sub-Advisernegligent activities of the Indemnitees. AMICUS’s material breach of this Agreement indemnification under subsection a (ii), above, shall not apply to any liability, damage, loss or expense to the willful misconduct, bad faithextent that it is attributable to the negligence, gross negligence or reckless disregard intentional misconduct of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustIndemnitees.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAMICUS shall, membersat its own expense, officers, employees, agents and shareholders, and each person, if any, who controls the Fund provide attorneys reasonably acceptable to MSSM to defend against any actions brought or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, filed against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions party indemnified hereunder with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser subject of indemnity contained herein, whether or the Fund by the Sub-Adviser for inclusion in not such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreementactions are rightfully brought.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersEXCEPT AS PROVIDED IN THIS SECTION 9, officersNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, employees and agentsCONSEQUENTIAL, and each personSPECIAL, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementEXEMPLARY OR PUNITIVE DAMAGES.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of indemnify and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify hold harmless the Fund and the Adviser and each of Trust, their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActFund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the Fund’s Registration Statement, performance of any proxy statement, of its duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents where such disclosure was actually included in such documents in its failure to perform under this Agreement or for any losses to the form and context as provided by Investment Adviser or the Sub-Adviser; (ii) Trust resulting from any event beyond the bad faith, willful misconduct or gross negligence by reasonable control of the Sub-Adviser in or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the performance of its duties under this Agreement Trust’s property; or the reckless disregard breakdown, failure or malfunction of its any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
D. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementexpenses incurred by, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser contracted for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except The Sub-Adviser shall bear, and be responsible for, and hold harmless and indemnify the Adviser, the Trust and their respective affiliates, directors, officers, shareholders, employees or agents (each, an “Indemnified Party”) from any loss, liability, cost, damage or expense (including attorneys’ fees and costs) suffered by any Indemnified Party as expressly set forth in this Agreement, absent a result of: (i) the Sub-Adviser’s material breach of this Agreement Agreement; and (ii) any untrue statement of a material fact (or the willful misconductan omission of such a statement), bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, related to the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth , contained in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementProspectus, or communication to Statement of Additional Information, or any amendment or supplement thereto, if such statement or omission was made in reliance on Sub-Adviser’s current Form ADV or prospective investors in the Fund relating to disclosure information provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in to the form and context as provided by Adviser (whether the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence information is furnished by the Sub-Adviser in the performance of its duties under this Agreement writing or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the through obtaining Sub-Adviser; (ii’s affirmation or approval of such information) for purposes of inclusion in any of the bad faithforegoing documents and filings. For purposes of this Section, material breach shall include, without limitation, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductmisfeasance, bad faith or gross negligence on the Sub-Adviser’s part in the performance of such person’s duties or by reason of its duties, reckless disregard of such person’s its obligations and duties under this Agreement, violation of applicable law, and any breaches of the representations, warranties and covenants of the Sub-Adviser hereunder. Sub-Adviser’s obligations contained in this Section 8 shall survive the expiration or termination of this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Trust for Professional Managers)
Liability and Indemnification. a. (a) Except as expressly set forth in this Agreementmay otherwise be provided by the 1940 Act or any other federal securities law, absent the Sub-Adviser’s material breach Subadviser, including any of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard its affiliates and any of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agentsemployees, employees consultants, or agents thereof and controlling persons, the Subany Subadviser-Adviser Delegatee (as defined below) shall not be liable for any act or omission in the course oflosses, claims, damages, liabilities, or connected with, rendering services hereunder litigation (including legal and other expenses) incurred or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon suffered by the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust Investment Manager, or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons thereof (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) ) (collectively, against“Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Subadviser with respect to the Fund or any act or omission by Subadviser in good faith and believed by it to be authorized or within its discretion, rights or powers conferred by this Agreement or in accordance with specific directions or instructions from the Investment Manager or the officers or trustees of the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Subadviser for, and Subadviser shall indemnify and hold them harmless from, the Fund and Investment Manager Indemnitees against any and all losses, claims, damages, liabilities, costs or litigation (including reasonable legal and expenses other expenses) to which any of the Fund and Investment Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of or based on (includingi) any willful misconduct, without limitationbad faith, reckless disregard, or gross negligence of Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund or the omission to state therein a material fact regarding Subadviser known to Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to Investment Manager or the Fund by Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable attorneys’ opportunity to review information regarding Subadviser contained in the Prospectus and accountants’ fees SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11 and disbursementsthe Investment Manager has accepted all material (in the opinion of the Subadviser) comments from Subadviser regarding such disclosure; (iii) any violation of federal or state statutes or regulations by Subadviser and (iv) any material breach of the terms of this Agreement by Subadviser. It is further understood and agreed that Subadviser may rely upon information furnished to it by Investment Manager that it reasonably believes to be accurate and reliable; provided, however, that Subadviser shall be liable for any loss incurred by the Fund, the Investment Manager or their respective affiliates to the extent such losses arise out of any negligent act or omission directly attributable to Subadviser which results directly in an error in the net asset value of the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which Investment Manager may have under any securities laws. Neither Subadviser nor any Subadviser Indemnitees (as defined below) shall be liable for any loss or damage arising or resulting from the acts or omissions of the custodian of the Fund, any broker, financial institution or any other third party with or through whom Subadviser arranges or enters into a transaction in respect of the Fund, except to the extent that Subadviser or its affiliate instructed such broker, financial institution or third party to take such action or omission and such action or omission constitutes willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser. Investment Manager understands and acknowledges that Subadviser does not warrant that the portion of the assets of the Fund managed by Subadviser will achieve any particular rate of return or that its performance will match any benchmark index or other standard or objective.
(b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Investment Manager and the Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons (as described in Section 15 of the 1933 Act) (collectively, “LossesSubadviser Indemnitees”) insofar as such Losses (a result of any error of judgment or actions mistake of law by Investment Manager with respect theretoto the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Investment Manager for, and Investment Manager shall indemnify and hold harmless Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) arise to which any of Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of or are based upon on (i) any actual willful misconduct, bad faith, reckless disregard, or gross negligence of Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material misstatement fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund or the omission to state therein a material fact known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission concerned Subadviser and was made in the Fund’s Registration Statement, any proxy statement, or communication reliance upon written information furnished to current or prospective investors in the Fund relating to disclosure provided to the Adviser Investment Manager or the Fund by the Sub-Adviser Subadviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided use therein, (iii) any violation of federal or state statutes or regulations by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement Investment Manager or the reckless disregard of its obligations or duties hereunder; or Fund, (iiiiv) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach terms of this Agreement by Investment Manager, (v) Subadviser acting in accordance with any instruction or direction provided by the Sub-Adviser including without limitation Investment Manager or the StrategyBoard, Governing Documents or Procedures (vi) the actions or omissions of any other subadviser to the Fund.
(c) After receipt by Investment Manager or Subadviser, its affiliates, or any representation officer, director, employee, or warranty contained in this Agreement.
e. Promptly after receipt of notice agent of any actionof the foregoing, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding entitled to indemnification as stated in (each a “Proceeding”) by a party seeking to be indemnified under Section 9(ca) or 9(d(b) above (the “Indemnified Party”), ) of notice of the Indemnified Party willcommencement of any action, if a claim in respect thereof is to be made against a party against whom any person obligated to provide indemnification is sought under Section 9(c) or 9(d) this section (the “Indemnifying Party”) ), such Indemnified Party shall notify the Indemnifying Party in writing of the commencement thereof as soon as practicable after the summons or other first written notification giving information of such Proceedingthe nature of the claim that has been served upon the Indemnified Party; provided that, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from any indemnification liability which it may have under this section, except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and such Indemnifying Party is damaged solely as a result of the failure to give such notice. The Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel satisfactory to the Indemnified Party; provided that Party to represent the Indemnified Party in the proceeding, and shall pay the fees and disbursements of such party is not materially prejudiced counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (1) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (2) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation by such failure both parties by the same counsel would be inappropriate due to notifyactual or potential differing interests between them. No The Indemnifying Party shall not be liable under this section for any settlement of any Proceeding entered into proceeding effected without its written consent, which consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive unreasonably withheld.
(d) Under no circumstances shall any party hereto be liable to another for special, punitive or consequential damages, arising under or in connection with this Agreement, even if previously informed of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance possibility of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementdamages.
Appears in 1 contract
Samples: Subadvisory Agreement (Columbia Funds Series Trust I)
Liability and Indemnification. a. Except as expressly set forth A. The Adviser shall exercise its best judgment in rendering the services under this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-. The Adviser shall not be liable for any act error of judgment or omission in the course of, or connected with, rendering services hereunder mistake of law or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of loss suffered by the Fund or other series its shareholders in connection with the matters to which this Agreement relates, provided that nothing herein shall be deemed to protect or purport to protect the Adviser against any liability to the Fund or to its shareholders to which the Adviser would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or by reason of the Trust.
c. The Sub-Adviser Adviser’s reckless disregard of its obligations and duties under this Agreement. Notwithstanding the foregoing, nothing herein shall indemnify the Fund and relieve the Adviser from any of its obligations under applicable law, including, without limitation, the federal and each of their respective trusteesstate securities laws. As used in this subsection, the term “Adviser” shall include any managers, members, officers, employeespartners, agents employees and shareholdersother affiliates of the Adviser, any Sub-Adviser that has entered into a sub- advisory agreement with the Adviser performing services with respect to the Fund and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act controls the Adviser.
B. The Adviser shall indemnify the Fund and its respective affiliates and controlling persons, for any liability and expenses, including without limitation reasonable attorneys’ fees and expenses, which may be sustained as a result of 1933the Adviser’s willful misfeasance, as amended (the “Securities Act”)bad faith, againstgross negligence, and hold them harmless fromreckless disregard of its duties hereunder, any and all lossesa material breach of a provision of this Agreement or violation of applicable law, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ the federal and accountants’ fees and disbursements) (collectivelystate securities laws. Unless otherwise obligated under applicable law, “Losses”) insofar as such Losses (the Adviser shall not be liable for indirect, punitive, special or actions with respect thereto) arise consequential damages arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Advisory Agreement (PRISM Multi Strategy Fund)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard None of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsServicer, the Sub-Adviser shall not be liable for any act or omission in Servicer, the course ofSpecial Servicer, or connected withthe Trustee, rendering services hereunder or for any losses that may be sustained in the purchaseNote Administrator, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that Collateral Manager nor their Affiliates nor any of the Fund’s obligations managers, members, directors, officers, employees or agents thereof shall be limited under any liability to either the assets Issuer or the Co-Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, in good faith pursuant to or in connection with this Agreement, or for errors in judgment; provided, however, that none of the Fund and that Servicer, the Sub-Adviser shall not seek satisfaction Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee or any such Person will be protected against any breach of its representations or warranties (if any) made in this Agreement or any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of its duties hereunder. The Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, and any director, officer, manager, member, employee or agent thereof may rely in good faith on any document of any such obligation from kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the shareholders of Sub-Servicer, the Fund nor from Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, and any other series of the Trust or any Trustees or member, manager, director, officer, employee or agent thereof shall be indemnified and held harmless by the Issuer and the Co-Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of such indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator, the holder of the Fund Controlling Companion Participation or the Trustee authorized, requested or advised the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of the willful misfeasance, bad faith, or negligence in the performance of the duties of the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s, the Collateral Manager’s or the Trustee’s, as the case may be, representations and warranties set forth in Section 7.01. Any such indemnification shall be payable from any amounts on deposit in the Collection Account or the Participated Loan Collection Account (other than in the case of the Note Administrator and the Trustee) and pursuant to the Priority of Payments under the Indenture. In the event that the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Commercial Real Estate Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer (or the Collateral Manager acting on behalf of the Issuer) shall promptly remit such overcharge to the related Obligor or other series Obligors after the Issuer’s receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of this indemnity, by reason of (i) the willful misfeasance, bad faith or negligence in the performance of the Trust.
c. The Sub-Adviser duties of the Servicer, the Special Servicer, the Note Administrator or the Trustee, as applicable, hereunder or (ii) a breach of the representations and warranties of the Servicer or the Special Servicer set forth in Section 7.01. Each of the Servicer and the Special Servicer, severally and not jointly, shall indemnify and hold harmless each of the Fund Trustee and the Adviser Note Administrator from and each of their respective trusteesagainst any claims, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilitiespenalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses (includingincurred by the Trustee or the Note Administrator, without limitationas the case may be, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) that arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, fraud or willful misconduct on the part of the Servicer or gross negligence by the Sub-Adviser Special Servicer, as the case may be, in the performance of its obligations under this Agreement or its negligent disregard of its obligations and duties under this Agreement. Each of the Trustee, the Note Administrator and the Advancing Agent, severally and not jointly, shall indemnify and hold harmless each of the Servicer and the Special Servicer from and against any claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses incurred by the Servicer or the Special Servicer, as the case may be, that arise out of or are based upon the negligence, bad faith, fraud or willful misconduct on the part of the Trustee, the Note Administrator or the Advancing Agent, as the case may be, in the performance of its obligations under this Agreement or the Indenture or its negligent disregard of its obligations and duties under this Agreement or the reckless disregard Indenture. Each of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser Servicer and the Fund Special Servicer shall indemnify be entitled to the Sub-Adviser same rights, protections, immunities and indemnities afforded to each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained herein in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission matter contained in the Fund’s Registration StatementIndenture. Neither the Servicer nor the Special Servicer shall be responsible for any delay or failure in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, any proxy statementstrikes, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form lockouts, riots and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance acts of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”war), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party delay or failure is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement also a result of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductown negligence, bad faith or gross negligence willful misconduct. Additionally, neither the Servicer nor the Special Servicer shall be liable for the actions or omissions of the Issuer, the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation), the Co-Issuer, the Trustee, the Note Administrator, the Servicer (in the performance case of such person’s duties the Special Servicer), the Special Servicer (in the case of the Servicer), and without limiting the foregoing, neither the Servicer nor the Special Servicer shall be under any obligation to verify compliance by any party hereto with the terms of the Indenture (other than itself) or to verify or independently determine the accuracy of information received by reason it from the Trustee, the Collateral Manager, the Issuer or Note Administrator (or from any selling institution, agent bank, trustee or similar source) with respect to the Commercial Real Estate Loans or Collateral Interests. The provisions of its reckless disregard this Section shall survive any termination of such person’s the rights and obligations and duties under this Agreementof the Servicer, the Special Servicer, the Note Administrator or the Trustee hereunder.
Appears in 1 contract
Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent may otherwise be provided by the Sub-Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other federal securities law, the Sub-Adviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Investment Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The error of judgment or mistake of law by the Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon with respect to the Fund’s , except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability set forth in of the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund for, and that the Sub-Adviser shall not seek satisfaction indemnify and hold harmless the Trust, the Investment Manager, all affiliated persons thereof within the meaning of any such obligation from the shareholders Section 2(a)(3) of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund 1940 Act (“affiliated person”) and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each personall persons, if anyany who, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”), againstcontrol (“controlling person”) the Trust or the Investment Manager (collectively, and hold them harmless from“Investment Manager Indemnitees”), against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses to which any of the Investment Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the Investment Advisers Act of 1940, as amended (includingthe “Advisers Act”), without limitationthe Internal Revenue Code, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyunder any other statute, “Losses”) insofar as such Losses (law, rule or actions with respect thereto) arise regulation, at common law or otherwise, arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; ’s responsibilities hereunder (iia) to the extent of and as a result of the willful misconduct, bad faith, willful misconduct or gross negligence by the Sub-Adviser Adviser, any of the Sub-Adviser’s employees or representatives or any affiliate of or any person acting on behalf of the Sub-Adviser, or (b) as a result of any untrue statement or alleged untrue statement of a material fact contained in the performance of its duties under this Agreement Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund, including any amendment thereof or any supplement thereto, or the reckless disregard of its obligations omission or duties hereunder; alleged omission to state therein a material fact required to be stated therein or (iii) any material breach of this Agreement necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser including without limitation to the StrategyInvestment Manager, Governing Documents or Procedures the Trust or any representation affiliated person of the Investment Manager or warranty contained the Trust or upon verbal information confirmed by the Sub-Adviser in writing, or (c) to the extent of, and as a result of, the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of the 1940 Act, the Internal Revenue Code, the Registration Statement and the Board/Investment Manager Procedures; provided, however, that in no case is the Sub-Adviser’s indemnity in favor of any Investment Manager Indemnitee deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of such person’s reckless disregard of obligations and duties under this Agreement. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Sub-Adviser as a result of any error of judgment or mistake of law by the Investment Manager with respect to the Fund, except that nothing in this Agreement.
d. The Adviser Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Investment Manager for, and the Fund Investment Manager shall indemnify and hold harmless the Sub-Adviser, any affiliated person of the Sub-Adviser and each controlling person of its partners, officers, employees and agents, and each personthe Sub-Adviser, if any, who controls against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses), to which the Sub-Adviser within the meaning or such affiliated person or controlling person of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents may become subject under the 1933 Act, the 1940 Act, the Advisers Act, the Internal Revenue Code, under any other statute, law, rule or regulation, at common law or otherwise, arising out of the Investment Manager’s responsibilities as investment manager of the Fund (a) to the extent of and as a result of the willful misconduct, bad faith, or gross negligence by the Investment Manager, any of the Investment Manager’s employees or representatives or any affiliate of or any person acting on behalf of the Investment Manager, or (b) as a result of any untrue statement or alleged untrue statement of a material fact contained in the form Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund, including any amendment thereof or any supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and context as provided in conformity with written information furnished by the Sub-Adviser; (ii) , or any affiliated person of the bad faith, willful misconduct Sub-Adviser or gross negligence other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the performance Investment Manager’s indemnity in favor of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation affiliated person or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing controlling person of the commencement of Sub-Adviser deemed to protect such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (Goldman Sachs Variable Insurance Trust)
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or North Track shall indemnify and hold Administrator and its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, from any and all claims, actions, suits, losses, claimscosts, damages, liabilitiesand expenses, costs and including reasonable expenses (includingfor counsel, without limitationincurred by it in connection with its acceptance of this Agreement, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions in connection with respect thereto) arise out of or are based upon (i) any actual material misstatement action or omission in the Fund’s Registration Statementby it or its employees, any proxy statementagents, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties hereunder to North Track, or as a result of acting upon any instruction believed by it to have been executed by a duly authorized agent of North Track or as a result of acting upon information provided by North Track in form and under this Agreement or the reckless disregard of its obligations or duties hereunderpolicies agreed to by Administrator and North Track; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategyprovided, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnershowever, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in to the Fund’s Registration Statementextent such claims, any proxy statementactions, suits, losses, costs, damages, or communication expenses relate solely to current one or prospective investors in more Funds, such indemnification shall be only out of the assets of that Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Advisergroup of Funds; (ii) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give North Track prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, North Track shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld. Administrator shall indemnify and hold harmless North Track from and against any and all claims, demands, expenses, and liabilities which North Track may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of North Track, or its other agents or contractors, and (ii) North Track shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of North Track In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreementmay otherwise be provided by the Investment Company Act or other federal securities law, absent neither the Sub-Adviser’s material breach Subadviser nor any of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, members or employees and controlling persons, the Sub-Adviser (its "Affiliates") shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-Adviser acknowledges error of judgment or mistake of law by the Subadviser or its Affiliates with respect to the Series, except that it has received notice of and accepts nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Subadviser or its Affiliates for, and the Subadviser agrees to indemnify and hold harmless the assets Manager, any affiliated person of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, Manager and each person, if any, who controls the Fund or the Adviser who, within the meaning of Section 15 of the Securities Act of 1933, as amended 1933 (the “Securities "1933 Act”"), againstcontrols ("controlling person") the Manager, and hold them harmless from, against any and all losses, claims, claims damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses (includingto which the Manager or such affiliated person or controlling person may become subject under the 1933 Act, without limitationthe Investment Company Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) insofar as such Losses (or actions with respect thereto) arise under any other statute, at common law or otherwise, arising out of or are based upon (i) on any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser Subadviser, any of the Subadviser's employees or representatives or any affiliate of or any person acting on behalf of the Subadviser in the performance of its duties under this Agreement or obligations hereunder. In no case shall the reckless disregard Subadviser's indemnity in favor of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures Manager or any representation affiliated person or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 controlling person of the Securities ActManager, from and against or any Losses suffered or sustained in connection with other provision of this Agreement, provided that be deemed to protect such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s its duties or by reason of its reckless disregard of such person’s its obligations and duties under this Agreement. Except as may otherwise be provided by the Investment Company Act or other federal securities law, neither the Manager nor any of its officers, members or employees (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Subadviser as a result of any error of judgment or mistake of law by the Manager or its Affiliates with respect to the Series, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Manager or its Affiliates for, and the Manager agrees to indemnify and hold harmless the Subadviser and any affiliated person or controlling person of the Subadviser against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses), to which the Subadviser or such affiliated person or controlling person may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or under any other statute, at common law or otherwise, arising out of or based on any willful misconduct, bad faith, or gross negligence by the Manager, any of the Manager's employees or representatives or any affiliate of or any person acting on behalf of the Manager in the performance of its duties or obligations hereunder. In no case shall the Manager's indemnity in favor of the Subadviser or any affiliated person or controlling person of the Subadviser, or any other provision of this Agreement, be deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Promptly after receipt by an indemnified party under this Section 12 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 12, notify the indemnifying party of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from liability which it may have to any indemnified party otherwise than under this Section 12. In case any such action is brought against any indemnified party, and it notified the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish and unless the indemnified party releases the indemnifying party from any further obligations under this Section 12 in connection with that action, assume the defense thereof, with counsel satisfactory to such indemnified party. After notice from the indemnifying party of its intention to assume the defense of an action, the indemnified party shall bear the expenses of any additional counsel obtained by it, and the indemnifying party shall not be liable to such indemnified party under this section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation.
Appears in 1 contract
Liability and Indemnification. a. 4.7.1 Except as expressly set forth otherwise provided by law, no Member, Manager or officer or agent of any Member, Manager or officer shall be liable, responsible, or accountable in this Agreement, absent any way for damages or otherwise to the Sub-Adviser’s material breach of this Agreement Joint Venture or the willful misconduct, bad faith, gross negligence or reckless disregard to any of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable Members for any act or omission failure to act pursuant to this Agreement or otherwise unless there is a final, non-appealable judicial determination that: (i) such Person acted in bad faith; (ii) the course ofconduct of such Person constituted intentional misconduct or a knowing violation of law; (iii) such Person gained a financial benefit to which such Person was not legally entitled; or (iv) such Person failed to perform his or her duties with respect to distributions under Section 18-607 of the Delaware Act, or connected with, rendering services hereunder or for any losses in good faith and with that may be sustained degree of care that an ordinarily prudent person in the purchase, holding or sale of any positiona like position would use under similar circumstances.
b. 4.7.2 The Sub-Adviser acknowledges that it has received notice of Joint Venture shall indemnify, defend, and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any hold harmless each of the Fund’s obligations shall be limited to the assets of the Fund Members, Managers, officers and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or each agent of the Fund a Member, Manager or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesofficer against third parties (severally, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities ActIndemnitee” and collectively, the “Indemnitees”), againstfrom and against any claims, and hold them harmless from, any and all losses, claimsliabilities, damages, liabilitiesfines, costs penalties, costs, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsdisbursements of counsel and other professionals) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of or are based upon in connection with: (ia) such Indemnitee’s status as a Member, Manager or officer of the Joint Venture; (b) any actual material misstatement act or omission failure to act by an Indemnitee pursuant to this Agreement; or (c) any claims, damages, liabilities, costs or expenses incurred by the Indemnitee in the Fund’s Registration Statement, any proxy statement, connection with past or communication to current or prospective investors in the Fund relating to disclosure provided present services to the Adviser or Joint Venture to the Fund fullest extent permitted by the Sub-Adviser law, except for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the gross negligence, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the misfeasance, reckless disregard of its obligations duties or duties hereunderwillful violation of law having a material adverse effect on the Joint Venture by such Indemnitee; provided, further, that an Indemnitee shall not be entitled to indemnification hereunder if there is a judicial determination that such Person’s actions or omissions to act is set forth in clauses (i), (ii), (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning (iv) of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement4.7.1 above.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser (a) The Consultant shall not be liable for any act his or omission in her own actions and agrees and covenants to indemnify and save the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of Corporation (and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partnersdirectors, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, ) harmless from and against any Losses claims, demands, debts, actions, causes of action, damages, loss, costs, legal fees on a solicitor and client basis, liability or expenses which may be brought against or be suffered or sustained incurred by the Corporation (or its directors, officers, employees and agents) in connection with this Agreementwith, provided that such Losses did not result from in whole or in part:
(i) any actual material misstatement the Consultant’s obligations under this agreement and the performance or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Subnon-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; performance thereof;
(ii) the bad faithany negligent act, omission or willful misconduct or gross negligence by of the Sub-Adviser Consultant in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or agreement;
(iii) payment or non-payment of the taxes referred to in Section 8;
(iv) any material breach of this Agreement the representations set out in Section 9; or
(v) any payment of license fees and all other payments analogous to royalties for, and also claims for damages based on, the use or infringement of any patent, registered industrial design, trade-xxxx, copyrighted work, trade secret, or other intellectual property right, and any costs or expenses incurred as a result of the exercise by any person of any moral rights that results from or is alleged to result from the carrying out of the services performed hereunder or from the use or disposal by the Sub-Adviser including without limitation Corporation of anything furnished by the StrategyConsultant hereunder.
(b) The Company shall indemnify and save the Consultant harmless from and against any third party claims, Governing Documents demands, debts, actions, causes of action, damages, loss, costs, legal fees on a solicitor and client basis, liability or Procedures expenses which may be brought against or any representation be suffered or warranty contained incurred by the Consultant (the “Claims”) in connection with, in whole or in part, this Agreement, the Consultant’s delivery of services to the Company under this Agreement, or the Company’s use of the deliverables provided by the Consultant under this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”c) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing The obligations of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable parties under this section for Section 7 shall survive any settlement termination or expiry of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Consulting Agreement (Zim Corp)
Liability and Indemnification. a. Section 7.1. Except as otherwise required by non-waivable provisions of Applicable Law or as expressly set forth in this Agreement, absent no Interest Holder shall have any personal liability whatsoever in such Interest Holder’s capacity as an Interest Holder in excess of its capital contribution, whether to the Sub-AdviserCompany, to any of the other Interest Holders, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company, other than arising out of a breach of this Agreement by such Interest Holder.
Section 7.2. None of the Members, the directors or the Officers shall be personally liable for the return of any portion of the capital contributions (or any return thereon) of the Interest Holders and the return, if any, of such capital contributions (or any return thereon) shall be made solely from assets of the Company. None of the Members or the directors or Officers shall be required to pay to the Company or any Interest Holder any deficit in any Interest Holder’s capital account upon dissolution of the Company or otherwise. None of the Members, directors or the Officers shall be liable, responsible or accountable, in damages or otherwise, to any Interest Holder or to the Company for any act performed by such Member, director or such Officer within the scope of the authority conferred on the Members, directors or the Officers by this Agreement, except for gross negligence, fraud, bad faith or a material breach of this Agreement or Agreement.
Section 7.3. The Company shall, to the willful misconductfullest extent permitted by the Act, bad faithindemnify and hold harmless the Interest Holders, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officersMembers, directors, Officers and their respective partners, agentsshareholders, employees members, officers, trustees, advisory board, directors, employees, attorneys and controlling personsagents and other affiliates (collectively, the Sub-Adviser shall not be liable for “Indemnified Parties”) from and against any act loss, expense, damage or omission injury suffered or sustained by them by reason of any acts, omissions or alleged acts or omissions arising out of their activities on behalf of the Company or in furtherance of the course ofinterests of the Company or by reason of the fact that such Person is or was an Interest Holder, Member, director, Officer, employee or agent of the Company, or connected with, rendering services hereunder is or for any losses that may be sustained in was serving at the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any request of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or Company as a director, trustee, member, manager, officer, employee or agent of the Fund another limited liability company, corporation, partnership, joint venture, trust or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesenterprise, membersincluding, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless frombut not limited to, any and all lossesjudgment, claimsaward, damages, liabilities, costs and expenses (including, without limitationsettlement, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyother costs or expenses incurred in connection with the investigation and defense of any actual or threatened action, “Losses”) insofar as proceeding or claim, unless the acts, omissions or alleged acts or omissions upon which such Losses (actual or actions with respect thereto) arise threatened action, proceeding or claim is based arose out of or are based upon (i) any actual material misstatement or omission in the Fundsuch Indemnified Party’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence or were performed or omitted fraudulently or in bad faith by the Sub-Adviser in the performance of its duties under this Agreement such Indemnified Party or the reckless disregard of its obligations or duties hereunder; or (iii) any constituted a material breach of this Agreement Agreement. If any claim for indemnification is based on a claim by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from a third party (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified PartyThird Party Claim”), the Indemnified Party willin question shall give prompt written notice thereof to the Company and shall permit the Company to defend and/or settle such Third Party Claim, if a so long as it does so diligently and in good faith; provided, however, that no compromise or settlement of any claim in respect thereof is to may be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (effected by the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to Company without the Indemnified Party; ’s consent (which will not be unreasonably withheld, conditioned or delayed) unless the sole relief provided is monetary damages that are paid in full by the Company. Any such party is not materially prejudiced by such failure to notify. No Indemnifying Party indemnification shall only be from the assets or insurance of the Company and no Interest Holder shall be liable under this section for required to contribute capital to the Company to satisfy any settlement such indemnification. Any such indemnification shall be paid by the Company in advance of the final disposition of any Proceeding entered into without its consent with respect such action, proceeding or claim upon receipt of an undertaking by or on behalf of the Indemnified Party seeking advancement to which indemnity may repay the amount advanced should it ultimately be sought hereunderdetermined that the Indemnified Party was not entitled to be indemnified hereunder or under the Act.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Liability and Indemnification. a. (a) The Portfolio Manager cannot and does not guarantee the future performance of the Portfolio, the success of any investment decision or strategy that the Portfolio Manager may utilize with respect to the Portfolio, or the success of the Portfolio Manager's overall management of the Portfolio. The Issuer understands that the investment decisions made by the Portfolio Manager with respect to the Portfolio are potentially subject to various market, currency, economic, political and business risks, and that such investment decisions may not always be profitable. Except as expressly may otherwise be provided by law, none of the Affiliated Persons shall be liable to the Issuer or any other party in connection with, or for: (i) any loss that the Issuer may suffer by reason of any investment decision made or other action taken or omitted in good faith by the Portfolio Manager with that degree of care, skill, prudence, and diligence under the circumstances that a prudent person acting in a similar capacity would use; (ii) any loss arising from the Portfolio Manager's adherence to the Issuer's instructions; or (iii) any act or failure to act by the Custodian, any broker(s) or dealer(s) engaging in transactions for the Issuer's, or any other third party (other than its delegees appointed in accordance with the terms of Section 4). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing in this Agreement will waive or limit any rights that the Issuer may have under those laws.
(b) Notwithstanding anything to the contrary set forth in clause (a) above, the Portfolio Manager shall indemnify and hold harmless each Indemnified Party and the Issuer from and against Indemnified Amounts arising out of or resulting from (i) any breach by the Portfolio Manager of its representations and warranties made in this Agreement, absent the Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard otherwise made by an officer of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Portfolio Manager pursuant to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust terms hereof or any Trustees or officerthereof, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faithfailure by the Portfolio Manager to perform any of the duties specifically undertaken by it under this Agreement, (iii) any lender liability claim, suit or action or other similar claim or action arising out of or resulting from any action or omission by the Portfolio Manager with respect to the Securities or the other Pledged Collateral, (iv) any equitable subordination claim, suit or action or other similar claim or action arising out of or resulting from any action or omission by the Portfolio Manager, (v) any failure by the Portfolio Manager to deliver, or cause the Issuer to deliver, in accordance with the Pledge Agreement, any instrument, chattel paper or certificated security evidencing any Pledged Collateral owned by the Issuer within ten(10) days of the acquisition thereof, or (vi) the Portfolio Manager's gross negligence or willful misconduct, excluding, however, in each case, (1) Indemnified Amounts to the extent arising out of or resulting from the willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement such Indemnified Party or the reckless disregard Issuer of any of his, her or its obligations or and duties hereunder; or (2) resource for uncollectible Securities (unless such Securities are uncollectible as a result of any breach, failure or claim described in clause (i), (ii), (iii), (iv), (v) or (vi) above) or, (3) indemnification of the Issuer or Indemnified Party for lost profits or for consequential, special or punitive damages or (4) any material breach of this Agreement income or franchise taxes (or any interest or penalties with respect thereto) or other taxes on or measured by the Sub-Adviser including without limitation gross or net income or receipts of such Indemnified Party or the Strategy, Governing Documents or Procedures Issuer or any representation or warranty withholding taxes. The agreements contained in this Agreement.
d. The Adviser Section 11(b) shall survive the Termination Date and the Fund shall indemnify the Sub-Adviser and each payment of its partners, officers, employees and agents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against all amounts due under any Losses suffered or sustained in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty contained in this AgreementTransaction Document.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (Arm Financial Group Inc)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in this Agreement, absent the Sub-Adviser’s material breach absence of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence neither the Sub-Adviser nor any of its officers, affiliates, employees or reckless disregard consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the obligations Sub-Adviser or duties hereunder on its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the part of 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees, agents and shareholdersconsultants, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended) (the collectively, “Securities ActSub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) insofar as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the of a Sub-Adviser; Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iii) any untrue statement of a material breach of this Agreement by the Sub-Adviser including without limitation the Strategy, Governing Documents or Procedures or any representation or warranty fact contained in this Agreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each Prospectuses or Statements of its partnersAdditional Information, officersproxy materials, employees and agents, and each personadvertisements or sales literature, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act, from and against any Losses suffered or sustained such statement was made in connection with this Agreement, provided that such Losses did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Investment Adviser or the Fund by the Sub-Adviser for inclusion in such documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; or (iii) any material breach of this Agreement by other federal securities law, the Sub-Adviser including without limitation shall indemnify and hold harmless the StrategyFund and the Trust, Governing Documents or Procedures or any representation or warranty contained their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in this Agreement.
e. Promptly after receipt Section 15 of notice the Securities Act of any action1933, arbitrationas amended) (collectively, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “ProceedingFund Indemnitees”) by a party seeking to be indemnified under Section 9(cagainst any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person of the Fund Indemnitees may be entitled by contract become subject at common law or otherwise by lawotherwise, and shall not protect any person against any liability to which any such person would otherwise be subject by reason arising out of the Sub-Adviser’s willful misconduct, bad faith or gross negligence; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any material breach by the Fund or the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of such person’s any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by reason any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of its reckless disregard currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of such person’s any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
E. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations and duties or expenses incurred by, or contracted for under this Agreement.
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