Common use of Liability and Indemnification Clause in Contracts

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a Fund, the 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 Sub-Adviser 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 Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 9 contracts

Samples: Sub Advisory Agreement (Pax World Funds Series Trust I), Sub Advisory Agreement (Pax World Funds Series Trust I), Sub Advisory Agreement (Pax World Funds Series Trust I)

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Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its “Affiliates”) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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 the Sub-Adviser or its Affiliates with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub-Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, (iii) the Fund’s failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) the Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, by reason of any action or omission of the Sub-Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein; or therein (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that collectively, “Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct”). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, “Losses”), provided, however, that the Adviser shall not be required to indemnify or hold harmless any Sub-Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, “Adviser Culpable Conduct”), and provided, further, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to hold harmless any Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 7 contracts

Samples: Investment Sub Advisory Agreement (Pyxis Funds Ii), Investment Sub Advisory Agreement (Pyxis Funds Ii), Investment Sub Advisory Agreement (Highland Funds Ii)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 5 contracts

Samples: Subadvisory Agreement (Riversource Managers Series, Inc.), Subadvisory Agreement (Riversource International Managers Series, Inc.), Subadvisory Agreement (Riversource International Managers Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, 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 a the Fund, the 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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 5 contracts

Samples: Subadvisory Agreement (Pax World Funds Series Trust I), Subadvisory Agreement (Pax World Funds Series Trust I), Subadvisory Agreement (Pax World Funds Series Trust I)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 4 contracts

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust), Subadvisory Agreement (Allianz Variable Insurance Products Fund of Funds Trust), Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.,

Appears in 3 contracts

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II), Subadvisory Agreement (Columbia Funds Variable Series Trust II), Subadvisory Agreement (Columbia Funds Variable Insurance Trust)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 1940 Act, or the Advisers Act. Subadviser does not warrant that the Allocated Portion 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors or trustees (or persons occupying similar positions), or shareholders, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof persoxx xxxxxof (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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof persoxx (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, directordirector or trustee (or person occupying a similar position), employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 3 contracts

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust), Subadvisory Agreement (Allianz Variable Insurance Products Trust), Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding the Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 3 contracts

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II), Subadvisory Agreement (Columbia Funds Series Trust II), Interim Subadvisory Agreement (Columbia Funds Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had an opportunity to review information regarding the Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Riversource International Managers Series, Inc.), Subadvisory Agreement (Riversource Managers Series, Inc.)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its officers, partners, or employees liable for any loss sustained by the Fund or its 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; provided, however, that nothing herein shall protect Subadviser against liability to the Fund or its officers, directors, shareholders, Manager, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, bad faith, or negligence in the performance of its duties, or by reason of its reckless disregard of its obligations and duties under this Agreement. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act") or the 1940 Act. 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 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, Sub-AdviserSubadviser, 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 a the Fund, the Manager, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) 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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof xx xxxxxxxxxxx xxxxxxx (as described xx xescribed in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , (iii) the performance, non-performance, or omission of any third-party service provider to the Fund, or (iiiiv) any violation of federal or state statutes or regulations by the Manager or the Fund. 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. 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 of limitation of any rights which Sub-Adviser that Subadviser may have under any securities laws. (cd) After receipt by Manager, the Manager Fund, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except to the extent that 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Allianz Life Variable Account B), Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the partners, 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 a Fund, AEFC or the 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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Fund, AEFC, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and Manager Indemnitees againstall controlling xxxxxxx (as described in Section 15 of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "AEFC Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager that AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) Subadviser as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of AEFC or the Manager Fund for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser Indemnitees Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlxxxx xersons (as described in Section 15 of the 1933 Act) (collectively, "Subadviser Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its their respective affiliates, or any partner, officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Axp Partners International Series Inc), Subadvisory Agreement (Axp Partners International Series Inc)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its “Affiliates”) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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 the Sub-Adviser or its Affiliates with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub-Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, (iii) the Fund’s failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) the Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, by reason of any action or omission of the Sub-Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein; or therein (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-collectively, “Sub- Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct”). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, “Losses”), provided, however, that the Adviser shall not be required to indemnify or hold harmless any Sub-Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, “Adviser Culpable Conduct”), and provided, further, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to hold harmless any Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 2 contracts

Samples: Investment Sub Advisory Agreement (Highland Funds Ii), Investment Sub Advisory Agreement (Highland Funds Ii)

Liability and Indemnification. (a) Except as may otherwise be provided A. To the maximum extent not prohibited by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partnersdirectors, employees, consultantsmembers, agents or agents thereof affiliates (collectively its “Affiliates”) shall not be liable for any any: (i) losses, claims, damages, liabilities, 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 any other loss with respect to any Fund, any shareholder thereof or the ManagerAdviser in connection with the Sub-Adviser’s performance of the Services; or (ii) failure to recommend the purchase or sale of any security on behalf of any Fund on the basis of any information which might, in the Sub-Adviser’s reasonable opinion, constitute a violation of any federal or state laws, rules or regulations. Nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 XxxInvestment Company Act) or and all controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Fund and Manager Adviser Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser 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 Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Investment Company Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a any Fund by the Sub-Adviser or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided B. To the maximum extent not prohibited by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds Trust shall not be liable for any losses, claims, damages, liabilities, 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 this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of its 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 0000 XxxInvestment Company Act) or and all controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the Fundsagainst, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Investment Company Act, the Advisers Act, or under any other statute, at common law, law or otherwise arising out of: of or based on any (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds any Fund or the omission to state therein a material fact regarding known to the Funds or Manager which Adviser that was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made. C. The Sub-Adviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Funds or that a Fund will perform comparably with any standard or index, including other clients of the Sub-Adviser, whether public or private. The Sub-Adviser shall not be deemed to have breached this Agreement or any investment restrictions or policies applicable to a Fund in connection with fluctuations arising from market movements and other events outside the control of the Sub-Adviser. D. The Sub-Adviser shall not be liable to the Adviser, the Funds or their shareholders, or the Trust for any action taken or failure to act in good faith reliance upon: (i) information, instructions or requests, whether oral or written, with respect to the Funds made in reliance upon written information furnished to the Sub-Adviser by a duly authorized officer of the Fund Adviser or the Trust; (ii) the advice of counsel to the Trust; and the Manager Indemnitees for use therein; or (iii) any violation of federal written instruction or state statutes or regulations by the Manager or 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 of limitation certified copy of any rights which Sub-Adviser may have under any securities laws. (c) After receipt resolution of the Board; all except by reason of the Manager or Sub-Adviser’s willful misconduct, its affiliatesbad faith, reckless disregard or any officer, director, employee, or agent of any gross negligence in connection with performing the Services hereunder. E. Without limiting the generality of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of neither the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify Adviser nor 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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party Sub-Adviser will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consentindirect, which consent shall not be unreasonably withheldspecial, but if settled with such consent incidental or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentconsequential damages.

Appears in 2 contracts

Samples: Investment Sub Advisory Agreement (JNL Series Trust), Investment Sub Advisory Agreement (JNL Series Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the officers, partners, employees, consultants, or agents thereof of Subadviser or any of its affiliates shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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 to the extent arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of this Agreement, or of federal or state statutes or regulations regulations, by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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 to the extent arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of this Agreement, or of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser Subadviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (RiverSource Variable Series Trust), Subadvisory Agreement (Riversource Variable Portfolio Managers Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11 hereof; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith; provided, and therefore nothing herein however, that Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any lossesloss incurred by the Fund, claims, damages, liabilities, Investment Manager or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its affiliated persons thereof (within their respective affiliates to 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, “Sub-Adviser Indemnitees”) as a result extent such losses arise out of any act or omission directly attributable to Subadviser which results, directly or indirectly, in a material error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance net asset value of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any willful misconduct, bad faith, reckless disregard, or negligence of Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II), Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the officers, partners, employees, consultants, or agents thereof of Subadviser or any of its affiliates shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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 to the extent arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of this Agreement, or of federal or state statutes or regulations regulations, by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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 to the extent arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of this Agreement, or of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser Subadviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II), Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its officers, directors, or employees liable for any loss sustained by the Fund or its 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; provided, however, that nothing herein shall protect Subadviser against liability to the Fund or its officers, directors, shareholders, Manager, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 1940 Act, or the Advisers Act. 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 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, Sub-AdviserSubadviser, any of its affiliates, and any of the officers, partnersdirectors, 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 a the Fund, the Manager, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof contxxxxxxx xxxxxxx xxxxxof (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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof persoxx (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith, It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Fund, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Fund of Funds Trust), Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its “Affiliates”) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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 the Sub-Adviser or its Affiliates with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub-Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, (iii) the Fund’s failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) the Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, by reason of any action or omission of the Sub- Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by Sub-the Sub- Adviser Indemnitees (as defined below) for use therein; or therein (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-collectively, “Sub- Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct”). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, “Losses”), provided, however, that the Adviser shall not be required to indemnify or hold harmless any Sub- Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, “Adviser Culpable Conduct”), and provided, further, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to hold harmless any Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 2 contracts

Samples: Investment Sub Advisory Agreement (Highland Funds Ii), Investment Sub Advisory Agreement (Highland Funds Ii)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, “Subadviser Parties”) liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, “Fund Parties”), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 2 contracts

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust), Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith; provided, and therefore nothing herein however, that Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) loss incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or their respective affiliates to the extent such losses arise out of any act or omission directly attributable to Subadviser which results, directly or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any willful misconduct, bad faith, reckless disregard, or negligence of Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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 directly, and only to the extent, arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager Subadviser known to Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if (A) such statement or omission was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager by Subadviser Indemnitees (as defined below) for use thereintherein and (B) Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations 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 or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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 affiliates instructed such custodian, broker, financial institution or third party to take such action or omission. 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. Notwithstanding the foregoing, in no event shall the Subadviser be liable to the Fund or the Investment Manager for special, indirect or consequential damages. (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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any willful misconduct, bad faith, reckless disregard, or negligence of Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. Notwithstanding the foregoing, in no event shall the Fund or the Investment Manager be liable to the Subadviser for special, indirect or consequential damages. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 written request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 in writing 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by the Funds, Manager, their respective officers, directors or trustees (or persons occupying a Fundsimilar position), the Manageror shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, directordirector or trustee (or person occupying a similar position), employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding the Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource International Managers Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its Affiliates) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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 the Sub-Adviser or its Affiliates with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of Sub-the Sub- Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (1933 Act)) (collectively, Adviser Indemnitees) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub- Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Funds Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trusts Board of Trustees or the Adviser, (iii) the Funds failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) the Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Funds Registration Statement or any written guidelines or instruction provided in writing by the Trusts Board of Trustees or the Adviser, by reason of any action or omission of the Sub- Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by Sub-the Sub- Adviser Indemnitees (as defined below) for use therein; or therein (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-collectively, Sub- Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of Sub-the Sub- Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, Losses), provided, however, that the Adviser shall not be required to indemnify or hold harmless any Sub- Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, Adviser Culpable Conduct), and provided, further, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to Sub-hold harmless any Sub- Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Highland Funds Ii)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, “Subadviser Parties”) liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, “Fund Parties”), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 1000 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 judgment, mistake of law or other act or omission by Sub-Adviser Subadviser with respect to a FundManager, the Funds or its services or performance under this Agreement, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 (without material modification) upon written information furnished to the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties’ or Fund and Manager Indemnitees’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser, its officers, directors, or shareholders, or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 1000 Xxx) or controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or judgment, mistake of law or other act or omission by the Trust or Manager with respect to the FundsFunds or, in the case of Manager, its services or performance under the Management Agreement, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Manager or the Manager Funds for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Funds or the Manager in the performance of any of its duties or obligations hereunderhereunder or under the Management Agreement; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance (without material modification) upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the FundFunds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties’ or Subadviser Indemnitees’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. 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. 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 of or limitation of any rights which Sub-Adviser that Subadviser may have under any securities laws. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except to the extent that such Indemnifying Party is damaged as a result of the failure to give such noticenotice (e.g., a claim or defense of the Indemnifying Party is materially prejudiced). The Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the officers, partnersdirectors, 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 a FundAEFC, the Manager, Fund 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”) its shareholders as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Fund, AEFC, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and Manager Indemnitees againstall controllinx xxxxxxs (as described in Section 15 of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "AEFC Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) Subadviser as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, 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 AEFC for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser Indemnitees Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and alx xxxxxolling persons (as described in Section 15 of the 1933 Act) (collectively, "Subadviser Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Axp Partners Series Inc)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the officers, partners, employees, consultants, or agents thereof of Subadviser or any of its affiliates shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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 to the extent arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of this Agreement, or of federal or state statutes or regulations regulations, by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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 to the extent arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.or

Appears in 1 contract

Samples: Subadvisory Agreement (RiverSource Variable Series Trust)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof conxxxxxxxx xxxxxxx xxxxeof (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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: proximately caused by (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, the Funds' annual and semi-annual reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; or (iii) any Subadviser's violation of federal or state statutes or regulations, but in the case of state insurance laws and regulations by Sub-Adviseror only those laws and regulations that Manager has communicated to Subadviser in writing are applicable to the Funds; provided, however, that the Funds and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof persxxx (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: proximately caused by (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, the Funds' annual and semi-annual reports, advertisements, or sales literature, or other materials literature pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. (e) Neither Manager nor Subadviser shall be liable for special, consequential or incidental damages.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its “Affiliates”) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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, “a Fund and Manager Indemnitees”) as a result of any error of judgment or mistake of law 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, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub-Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in a Fund’s Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, (iii) a Fund’s failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) a Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in a Fund’s Registration Statement or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, by reason of any action or omission of the Sub- Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by Sub-the Sub- Adviser Indemnitees (as defined below) for use therein; or therein (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-collectively, “Sub- Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct”). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, “Losses”), provided, however, that the Adviser shall not be required to indemnify or hold harmless any Sub- Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, “Adviser Culpable Conduct”), and provided, further, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to hold harmless any Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Highland Funds Ii)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, “Subadviser Parties”) liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, “Fund Parties”), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Trust and the Manager for, and the Trust and the Manager shall indemnify (severally, but not jointly) and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Trust or the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that the Trust and the Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 SubSubadviser (including any Subadviser-Adviser Delegatee) for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.untrue

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its officers, partners, or employees liable for any loss sustained by a Fund or its 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; provided, however, that nothing herein shall protect Subadviser against liability to a Fund or its officers, directors, shareholders, Manager, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, bad faith, or negligence in the performance of its duties, or by reason of its reckless disregard of its obligations and duties under this Agreement. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act") or the 1940 Act. Subadviser does not warrant that the portion of the assets of a Fund 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, Sub-AdviserSubadviser, 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 a Fund, the Manager, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons contrxxxxxx xersons 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 Sub-Adviser Subadviser 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund Funds and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof personx (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager with respect to the Fundsa 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 Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , (iii) the performance, non-performance, or omission of any third-party service provider to the Funds, or (iiiiv) any violation of federal or state statutes or regulations by the Manager or the FundFunds. 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. 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 of limitation of any rights which Sub-Adviser that Subadviser may have under any securities laws. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except to the extent that 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource Strategy Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its officers, directors, or employees liable for any loss sustained by the Fund or its 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; provided, however, that nothing herein shall protect Subadviser against liability to the Fund or its officers, directors, shareholders, Manager, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 1940 Act, or the Advisers Act. 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 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, Sub-AdviserSubadviser, any of its affiliates, and any of the officers, partnersdirectors, 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 a the Fund, the Manager, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof contrxxxxxx xxxxxxx xxxxxxf (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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof personx (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith, It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Fund, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Fund of Funds Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the partners, 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 a Fund, AEFC or the 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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Fund, AEFC, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and Manager Indemnitees againstall controllixx xxxxons (as described in Section 15 of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "AEFC Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) Subadviser as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of AEFC or the Manager Fund for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser Indemnitees Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlxxxx xxxsons (as described in Section 15 of the 1933 Act) (collectively, "Subadviser Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its their respective affiliates, or any partner, officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Axp Partners Series Inc)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, trustees (or persons occupying equivalent positions), or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, directortrustee or director (or person occupying a similar position), employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) A. Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliatesdirectors, and any of the officers, partnersmembers, employees, consultants, or agents thereof (its “Affiliates”) shall not be liable (i) for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fund, the Manager, Adviser 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”) Trust as a result of any error of judgment or mistake of law 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, in the Sub-Adviser’s reasonable opinion, constitute a Fundviolation 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, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and Manager Indemnitees all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against, any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Investment Company Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a any Fund by the Sub-Adviser or the omission to state therein a material fact regarding 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 written information required to be furnished to the Manager Adviser or a Fund the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds Trust shall not be liable for any losses, claims, damages, liabilities, 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 this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of its 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 0000 XxxInvestment Company Act) or and all controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the Fundsagainst, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Investment Company Act, the Advisers Act, or under any other statute, at common law, law or otherwise arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds any Fund or the omission to state therein a material fact regarding known to the Funds or Manager which Adviser that was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made in reliance upon written information required to be furnished to Sub-the Adviser or the Trust by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (JNL Series Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the ManagerAEFC, or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, "Fund and Manager AEFC Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager AEFC Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof perxxxx (as xx described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, 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 AEFC for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Axp Partners Series Inc)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith; provided, and therefore nothing herein however, that Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) loss incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or their respective affiliates to the extent such losses arise out of any act or omission directly attributable to Subadviser which results, directly or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any 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 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the officers, partnersdirectors, 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 a the Fund, the ManagerAEFC, or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons persoxx thereof (as described in Section 15 of the 1933 Act) (collectively, "Fund and Manager AEFC Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager AEFC Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any knowingly untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the knowing omission to state therein a material fact regarding Sub-Adviser 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable, including information provided under Paragraph 1(a)(v). 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 of limitation of any rights which the Manager AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof perxxxx (as xx described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, 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 AEFC for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any knowingly untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the knowing omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Axp Partners International Series Inc)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a Fundthe Funds, the ManagerAdviser, or any affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Fund and Manager Adviser Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser with respect to a Fundthe Funds, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Adviser Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding 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 written information furnished to Adviser or the Manager or a Fund Funds by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager Adviser that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager Adviser may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager Adviser 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 the Manager Adviser for, and the Manager Adviser shall indemnify and hold harmless the 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 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 written information furnished to Sub-Adviser by the Fund and the Manager Adviser Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager Adviser or the FundFunds. 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager Adviser or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (Impax Funds Series Trust I)

Liability and Indemnification. (a) A. Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partnersdirectors, members, employees, consultants, agents or agents thereof affiliates (its “Affiliates”) shall not be liable (i) for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fund, the Manager, Adviser 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”) Trust as a result of any error of judgment or mistake of law 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, in the Sub-Adviser’s reasonable opinion, constitute a Fundviolation 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, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and Manager Indemnitees all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against, any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Investment Company Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a any Fund by the Sub-Adviser or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds Trust shall not be liable for any losses, claims, damages, liabilities, 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 this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of its 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 0000 XxxInvestment Company Act) or and all controlling persons thereof (as described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the Fundsagainst, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Investment Company Act, the Advisers Act, or under any other statute, at common law, law or otherwise arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds any Fund or the omission to state therein a material fact regarding known to the Funds or Manager which Adviser that was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made in reliance upon written information furnished to Sub-the Adviser or the Trust by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (JNL Series Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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 in each case arising out of: as a direct result of (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.fact

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Series Trust I)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed provided, however, that Sub-Adviser may rely upon Subadviser has had a reasonable opportunity to review information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, literature or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made Fund as set forth in reliance upon written information furnished to Sub-Adviser by the Fund and the Manager Indemnitees for use thereinsection 11; or (iii) any violation an adjudication, order, or other determination issued by a court or regulatory agency of competent jurisdiction finding that the Subadviser has violated federal or state statutes or regulations regulations; provided that in no event shall Subadviser be liable for consequential, incidental, special, exemplary, indirect or punitive damage. The Subadviser, and its directors, officers, partners, principals, employees and agents, shall be entitled to rely, and shall be protected from liability in reasonably relying, upon any information or instructions furnished to it (or any of them as individuals) by the Investment Manager or its agents which is believed in good faith 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 that extent that such losses arise out of the willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser or its affiliates, which results, directly or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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 such loss or damage results from the willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser or its affiliates in instructing such broker, financial institution or third party to take such action or omission. 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 Is of the 1933 Act) (collectively, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 Investment Manager for, and Investment Manager shall indemnify and hold harmless Subadvisor Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) 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 based on (i) any 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 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) an adjudication, order, or other determination issued by a court or regulatory agency of competent jurisdiction finding that the Investment Manager or the Fund has violated federal or state statutes or regulations; provided that in no event shall Investment Manager or the Fund be liable for consequential, incidental, special, exemplary, indirect or punitive damage. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve reli eve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a the Fund, the ManagerAdviser, 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 Adviser Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser with respect to a 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 Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Adviser Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to Adviser or the Manager or a Fund by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager Adviser that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager Adviser may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager Adviser with respect to the FundsFund, 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 Adviser for, and the Manager Adviser shall indemnify and hold harmless the 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 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager 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 written information furnished to Sub-Adviser by the Fund and the Manager Adviser Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager Adviser or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager Adviser or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (Pax World Funds Series Trust I)

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Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors or trustees (or persons occupying similar positions), or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, directordirector or trustee (or person occupying a similar position), employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities ; provided, however, that, subject to the standard of care set forth in certain circumstances on persons who act in good faiththis Section 8, and therefore nothing herein Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any lossesloss incurred by the Fund, claims, damages, liabilities, the Investment Manager or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its affiliated persons thereof (within their respective affiliates to 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, “Sub-Adviser Indemnitees”) as a result extent such losses arise out of any act or omission directly attributable to Subadviser which results, directly or indirectly, in an error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance net asset value of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. In performing its obligations under this Agreement, the Subadviser may rely upon information concerning the Fund’s books and records provided to it by the Investment Manager, the custodian or other agent(s) designated by the Investment Manager, and will not independently verify the accuracy or completeness of such information. The Subadviser (and its officers, directors, agents, employees, controlling persons, shareholders and any other person or entity affiliated with the Subadviser) shall not be liable for any loss, claim or damages related to such reliance. 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. The Investment Manager understands that investment decisions made for the Fund by the Subadviser are subject to various market, currency, economic, political, business and structure risks and that those investment decisions will not always be profitable. (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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any 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 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser Subadviser known to Subadviser, and to which Subadviser failed to make Investment Manager aware, 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith; provided, and therefore nothing herein however, that Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) loss incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or their respective affiliates to the extent such losses arise out of any act or omission directly attributable to Subadviser which results, directly or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any 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 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a Fundthe portion of assets of the Fund allocated to Subadviser, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all direct losses, claims, damages, liabilities, or litigation (including reasonable legal and 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 otherwise, directly arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. Subadviser shall not be liable to Investment Manager, its officers, directors, agents, employees, controlling persons or shareholders or to the Fund or its shareholders for (i) any acts of Investment Manager or any other subadviser to the Fund with respect to the portion of the assets of the Fund not managed by Subadviser and (ii) acts of Subadviser which result from or are based upon acts of Investment Manager, including, but not limited to, a failure of Investment Manager to provide accurate and current information with respect to any records maintained by Investment Manager or any other subadviser to the Fund, which records are not also maintained by Subadviser or, to the extent such records relate to the portion of the assets managed by Subadviser, otherwise available to Subadviser upon reasonable request. Investment Manager and Subadviser each agree that Subadviser shall manage the portion of the assets of the Fund allocated to it as if it was a separate operating fund and shall comply with Section 1(a)(ii) of this Agreement only with respect to the portion of assets of the Fund allocated to Subadviser. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii, or of any subadviser with respect to the portion of the Fund's assets not allocated to Subadviser;(ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource International Managers Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith; provided, and therefore nothing herein however, that Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) loss incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or their respective affiliates to the extent such losses arise out of any act or omission directly attributable to Subadviser which results, directly or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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 (including market data service providers) 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. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any 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 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the partners, 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 a Fund, AEFC or the 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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Fund, AEFC, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and Manager Indemnitees againstall controlling xxxxxxx (as described in Section 15 of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "AEFC Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) Subadviser as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of AEFC or the Manager Fund for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser Indemnitees Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controllinx xxxxxxs (as described in Section 15 of the 1933 Act) (collectively, "Subadviser Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its their respective affiliates, or any partner, officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Axp Discovery Fund Inc)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a the Fund, the ManagerAdviser, 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 Adviser Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser with respect to a 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 Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Adviser Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to Adviser or the Manager or a Fund by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager Adviser that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager Adviser may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager Adviser with respect to the FundsFund, 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 Adviser for, and the Manager Adviser shall indemnify and hold harmless the 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 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager 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 written information furnished to Sub-Adviser by the Fund and the Manager Adviser Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager Adviser or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager Adviser or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 file nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 die Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (Pax World Funds Series Trust I)

Liability and Indemnification. (a) Subadviser agrees to perform the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its officers, partners, employees or affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, “Subadviser Parties”) liable for any loss sustained by the Funds, Manager, or their respective officers, partners, employees or affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, “Fund Parties”), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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) (d) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunderhereunder or under the Management Agreement; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (ce) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party Party (f) 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource Strategy Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws.misconduct, (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (RiverSource Variable Series Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its “Affiliates”) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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 the Sub-Adviser or its Affiliates with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub-Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, (iii) the Fund’s failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) the Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, by reason of any action or omission of the Sub- Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by the Sub- Adviser for use therein (collectively, “Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct”). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, “Losses”), provided, however, that the Adviser shall not be required to indemnify or hold harmless any Sub- Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, “Adviser Culpable Conduct”), and provided, further, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to hold harmless any Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Highland Funds Ii)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, affiliates and any of the officers, partnersdirectors, 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 a FundAEFC, the Manager, Fund 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”) its shareholders as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Fund, AEFC, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and Manager Indemnitees againstall controllinx xxxxxxs (as described in Section 15 of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "AEFC Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager AEFC 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 AEFC or the Manager or a Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager AEFC that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager AEFC may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager AEFC and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) Subadviser as a result of any error of judgment or mistake of law by the Manager AEFC with respect to the FundsFund, 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 AEFC for, and the Manager AEFC shall indemnify and hold harmless Sub-Adviser Indemnitees Subadviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling xxxxxxx (as described in Section 15 of the 1933 Act) (collectively, "Subadviser Indemnitees") against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager AEFC in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager known to AEFC which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made in reliance upon written information furnished to Sub-Adviser by AEFC or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager AEFC or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager AEFC or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Axp Progressive Fund Inc)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, neither the Sub-Adviser, Adviser nor any of its affiliates, and any of the officers, partners, employees, consultants, directors or agents thereof employees (its “Affiliates”) shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Trust 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 the Sub-Adviser or its Affiliates with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the Fund Trust, the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and Manager Indemnitees againstall controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on (i) any willful misfeasance, bad faith, reckless disregard, disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder; , (ii) the Sub-Adviser being in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement on Form N-1A or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, (iii) the Fund’s failure to satisfy the diversification or source of income requirements of Subchapter M of the Code by reason of any action or omission of the Sub-Adviser, unless acting at the direction of the Adviser, (iv) the Fund being in material violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund’s Registration Statement or any written guidelines or instruction provided in writing by the Trust’s Board of Trustees or the Adviser, by reason of any action or omission of the Sub-Adviser, or (v) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus prospectus and SAIstatement of additional information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager Adviser or a Fund the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein; or therein (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that collectively, “Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities lawsCulpable Conduct”). (b) Except as may otherwise be provided by The Adviser shall indemnify and hold harmless the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or and controlling persons thereof (as described in Section 15 of the 1933 Act) persons, if any (collectively, the “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, from and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, 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 1940 Act, the Advisers Act, or under any other statute, at or common law, law or otherwise arising out of: of or based on any violation by the Adviser or the Trust of any applicable law, rule or regulation, or any provision of this Agreement (i) collectively, “Losses”), PROVIDED, HOWEVER, that the Adviser shall not be required to indemnify or hold harmless any Sub-Adviser Indemnitee against any Losses other than those arising out of or based on the willful misfeasance, bad faith, reckless disregard, faith or gross negligence of the Manager Adviser, or reckless disregard of the duties involved in the performance of any conduct of its duties or obligations hereunder; position (ii) any untrue statement of a material fact contained in collectively, “Adviser Culpable Conduct”), and PROVIDED, FURTHER, that the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was Adviser shall not be required to be stated therein indemnify or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to hold harmless any Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made Indemnitee against any person obligated to provide indemnification under this section (“Indemnifying Party”), such Indemnified Party shall notify the Indemnifying Party in writing Losses arising out of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability under this section, except based on Adviser Culpable Conduct if and 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall Losses would not 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentoccurred absent Sub-Adviser Culpable Conduct.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Highland Funds I)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, “Subadviser Parties”) liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, “Fund Parties”), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any direct losses, claims, damages, liabilities, or litigation (including legal and other expenses, but specifically excluding any indirect, special or consequential loss or any loss of profit or business opportunity) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any direct losses, claims, damages, liabilities, or litigation (including legal and other expenses, but specifically excluding any indirect, special or consequential loss or any loss of profit or business opportunity) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. (e) Notwithstanding anything in this Agreement to the contrary, Subadviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Fund resulting from any event beyond the reasonable control of the Subadviser or its agents, including but not limited to, nationalization, strikes, 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 Fund; 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. This Section shall survive the termination of this Agreement.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the 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 act or omission directly attributable to Subadviser which results, directly or indirectly, in an error in the net asset value of the Fund unless the Subadviser has been directed by the Investment Manager or the Fund to take such action or omission. 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 of limitation of any rights which the Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. 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, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser Subadviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource Strategy Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a Fundthe Funds, the ManagerAdviser, 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 Adviser Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser with respect to a Fundthe Funds, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Adviser Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding 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 written information furnished to Adviser or the Manager or a Fund Funds by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager Adviser that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager Adviser may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager Adviser 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 the Manager Adviser for, and the Manager Adviser shall indemnify and hold harmless the 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 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 written information furnished to Sub-Adviser by the Fund and the Manager Adviser Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager Adviser or the FundFunds. 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager Adviser or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (Pax World Funds Series Trust I)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its 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 Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any knowingly untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the material omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any knowingly untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or material omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource Variable Portfolio Managers Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, The Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Adviser shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by a Fundthe Adviser, the Manager, Fund 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”) their affiliates as a result of any error of judgment or mistake of law by the Sub-Adviser with respect to a the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Sub-Adviser for, and the Sub-Adviser shall indemnify and hold harmless the Adviser, its affiliated persons (within the meaning of Section 2(a)(3) of the 0000 Xxx) and the Fund and Manager Indemnitees against(collectively, the "Indemnities") against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Indemnitees Indemnities 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 (a) the Sub-Adviser causing the Fund to be in violation of any applicable federal or state law, rule or otherwise arising out of: regulation or any investment policy or restriction set forth in the Fund's Prospectus or Statement of Additional Information or any written policies, procedures, guidelines or instructions provided in writing to the Sub-Adviser by the Trustees or the Adviser, (ib) any the Sub-Adviser causing the Fund to fail to satisfy the diversification requirements or source of income requirements of Subchapter M of the Code, or (c) the Sub-Adviser's willful misfeasance, bad faith, reckless disregard, faith or gross negligence of Sub-Adviser generally in the performance of any its duties hereunder or its reckless disregard of its obligations and duties or obligations hereunder; under this Agreement. (iib) any untrue statement of a material fact regarding Sub-Adviser contained in Notwithstanding the applicable Prospectus and SAIforegoing, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of be deemed to waive or limit any rights which that the Manager Fund may have under any the federal securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Pioneer Global Value Fund)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable opportunity to review information regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11, and to communicate any amendment to such information that is required under this Agreement; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith; provided, and therefore nothing herein however, that Subadviser shall in any way constitute a waiver of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any lossesloss incurred by the Fund, claims, damages, liabilities, the Investment Manager or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its affiliated persons thereof (within their respective affiliates to 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, “Sub-Adviser Indemnitees”) as a result extent such losses arise out of any act or omission directly and exclusively attributable to Subadviser which results, directly or indirectly, in an error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance net asset value of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any willful misconduct, bad faith, reckless disregard, or negligence of Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein (which information has not been the subject of any amendment communicated by a Subadviser Indemnitee to Investment Manager or the Fund), or (iii) any violation of federal or state statutes or regulations by Investment Manager or the Fund. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, "Subadviser Parties") liable for any loss sustained by the Funds, Manager, or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, "Fund Parties"), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the FundFunds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties' willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. 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. 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 of or limitation of any rights which Sub-Adviser that Subadviser may have under any securities laws. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a Fund, the 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 Sub-Adviser 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 Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager Adviser that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (Pax World Funds Series Trust I)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment Manager, or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons controllxxx xxxxons thereof (as described in Section 15 of the 1933 Act) (collectively, "Fund and Investment Manager Indemnitees") as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser the 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 the Investment Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Investment Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Investment Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx1940 Act) or controlling persons thereof personx (as xx described in Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Investment Manager with respect to the FundsFund, 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 Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Investment Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the subadviser and was made in reliance upon written information furnished to Sub-Adviser by Investment Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Investment Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Riversource Managers Series, Inc.)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-Adviser, 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 a the Fund, the ManagerAdviser, 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 Adviser Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser with respect to a 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 Sub-Adviser for, and Sub-Adviser shall indemnify and hold harmless the Fund and Manager Adviser Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Adviser 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: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding 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 written information furnished to Adviser or the Manager or a Fund by the Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager Adviser that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager Adviser may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager Adviser and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the Manager Adviser with respect to the FundsFund, 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 Adviser for, and the Manager Adviser shall indemnify and hold harmless the 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 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of: (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager Adviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager 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 written information furnished to Sub-Adviser by the Fund and the Manager Adviser Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager Adviser or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager Adviser or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Sub Advisory Agreement (Pax World Funds Series Trust I)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”) ) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.the

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, but nothing herein contained shall make Subadviser or any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, or assignees (collectively, “Subadviser Parties”) liable for any loss sustained by the Funds, Manager, any other subadviser or their respective affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, agents, assignees, or shareholders (collectively, “Fund Parties”), or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund Parties, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, 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. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the Securities Act of 1933, as amended, (the "1933 Act"), the 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, Sub-Adviser, any of its affiliates, and any of the officers, partners, employees, consultants, or agents thereof Subadviser Parties shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by a Fundthe Funds, the Manager, their respective officers, directors, or shareholders, 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 Sub-Adviser Subadviser with respect to a Fundthe Funds, except that that, subject to paragraph (a) above, nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund Funds and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Funds or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a Fund the Funds by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser; provided, however, that the Fund and Manager Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Fund Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement or the Management Agreement, or violation of applicable law. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of or limitation of any rights which the that Manager may have under any securities laws. (bc) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its 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, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Trust or 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser the Subadviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned Subadviser and was made in reliance upon written information furnished to Sub-Adviser Manager or the Funds by the Fund and the Manager Indemnitees a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good Funds; provided, however, that the Subadviser Indemnitees shall not be indemnified for any losses, claims, damages, liabilities, or litigation sustained as a result of Subadviser Parties’ willful misfeasance, bad faith, gross negligence, or reckless disregard of their duties under this Agreement, or violation of applicable law. It is further understood and therefore nothing herein shall in any way constitute a waiver of limitation of any rights which Sub-Adviser agreed that Manager may have under any securities lawsrely upon information furnished to it by Subadviser that it reasonably believes to be accurate and reliable. (cd) After receipt by Manager, the Manager Funds, or Sub-AdviserSubadviser, its their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (ab) or (bc) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Allianz Variable Insurance Products Trust)

Liability and Indemnification. (a) a. Except as may otherwise be provided by the 1940 Act or any other federal securities lawlaws, Sub-Adviserin the absence of the Subadviser's willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations or duties hereunder ("Disabling Conduct"), neither the Subadviser nor any of its affiliatesaffiliates or its or their officers, and directors, employees or agents (the "MS Parties") shall be subject to any liability to the Manager, the Fund, the Portfolio or any shareholder of the officersPortfolio or the Fund for any error in judgment, partners, employees, consultantsmistake of law or loss arising out of any investment, or agents thereof any other act or omission in the course of, connected with, or arising out of any service to be rendered under this Agreement, nor shall not the Subadviser be liable for any losses, claims, damages, liabilities, loss suffered as a consequence of any action or litigation (including legal and inaction of other expenses) incurred service providers to the Fund or suffered by a Fund, Portfolio in failing to observe the Manager, or any affiliated persons thereof (within the meaning of Section 2(a)(3) instructions of the 0000 Xxx) Manager 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 Sub-Adviser with respect to a Fund, except that nothing Subadviser. Nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of Sub-Adviser the Subadviser for, and Sub-Adviser the Subadviser shall indemnify and hold harmless the Fund and Fund, the Manager, all affiliated persons (as described in Section 15 of the 1933 Act) (collectively, "Manager Indemnitees against, Indemnitees") against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund and Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, law or otherwise arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of Sub-Adviser the Subadviser in the performance of any of its duties or obligations hereunder; hereunder or (ii) any untrue statement of a material fact regarding Sub-Adviser contained in the applicable Prospectus and SAIProspectus, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund the Portfolio or the omission to state therein a material fact regarding Sub-Adviser 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 written information furnished to the Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) b. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, liabilities or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) Subadviser as a result of any error of judgment or mistake of law by the Manager with respect to the FundsPortfolio, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, waive or limit the liability of the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees 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, "Subadviser Indemnitees") against any and all losses, claims, damages, liabilities, liabilities or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, law or otherwise arising out of: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, disregard or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; , (ii) any failure by the Manager to properly notify the Subadviser of changes to the Prospectus or other 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 fact contained in the applicable Prospectus and SAIProspectus, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Portfolio or the omission to state therein a material fact regarding known to the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission was made in reliance upon written information furnished to Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or the FundFund by a Subadviser Indemnitee for use therein. The federal securities laws impose liabilities Manager acknowledges and agrees that the Subadviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Portfolio or that the Portfolio will perform comparably with any standard or index, including other clients of the Subadviser, whether public or private. c. The Subadviser acknowledges that it has received notice of and accepts the limitations upon the Fund's liability set forth in certain circumstances on persons who act in good faith, this Agreement. The Subadviser agrees that any of the Fund's obligations shall be limited to the assets of the Portfolio and therefore nothing herein that the Subadviser shall in any way constitute a waiver of limitation not seek satisfaction of any rights which Sub-Adviser may have under such obligation from the shareholders of the Fund nor from any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any Fund officer, director, employee, employee or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgmentFund.

Appears in 1 contract

Samples: Subadvisory Agreement (Travelers Series Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Investment Manager or a the Fund by Sub-Adviser Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed provided, however, that Sub-Adviser may rely upon Subadviser has had a reasonable opportunity to review information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, literature or other materials pertaining to the Funds or the omission to state therein a material fact regarding the Funds or Manager which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made Fund as set forth in reliance upon written information furnished to Sub-Adviser by the Fund and the Manager Indemnitees for use thereinsection 11; or (iii) any violation an adjudication, order, or other determination issued by a court or regulatory agency of competent jurisdiction finding that the Subadviser has violated federal or state statutes or regulations regulations; provided that in no event shall Subadviser be liable for consequential, incidental, special, exemplary, indirect or punitive damage. The Subadviser, and its directors, officers, partners, principals, employees and agents, shall be entitled to rely, and shall be protected from liability in reasonably relying, upon any information or instructions furnished to it (or any of them as individuals) by the Investment Manager or its agents which is believed in good faith 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 that extent that such losses arise out of the willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser or its affiliates, which results, directly or indirectly, 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 of limitation of any rights which Sub-Adviser Investment Manager may have under any securities laws. Neither Subadviser nor its affiliates 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 such loss or damage results from the willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser or its affiliates in instructing such broker, financial institution or third party to take such action or omission. 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, “Subadviser Indemnitees”) as a result of any error of judgment or mistake of law by 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 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) 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 based on (i) any 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 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 reliance upon written information furnished to Investment Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) an adjudication, order, or other determination issued by a court or regulatory agency of competent jurisdiction finding that the Investment Manager or the Fund has violated federal or state statutes or regulations; provided that in no event shall Investment Manager or the Fund be liable for consequential, incidental, special, exemplary, indirect or punitive damage. (c) After receipt by the Investment Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 of the nature of the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Series Trust II)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, any of its affiliates, 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 a the Fund, the Investment 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 Securities Act of 1933, as amended (the “1933 Act”)) (collectively, “Fund and Investment Manager Indemnitees”) as a result of any error of judgment or mistake of law by Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Investment Manager Indemnitees against, against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Fund or the omission to state therein a material fact regarding 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 written information furnished to the Manager or a Fund by Sub-Adviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-Adviser. It is further understood and agreed that Sub-Adviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser or any of its 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, “Sub-Adviser Indemnitees”) as a result of any error of judgment or mistake of law by the 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 the Manager for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser 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: (i) any willful misfeasance, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or Manager 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 Sub-Adviser by the Fund and the Manager Indemnitees for use therein; or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-Adviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above (“Indemnified Party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section (“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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.Subadviser known to

Appears in 1 contract

Samples: Subadvisory Agreement (Columbia Funds Variable Insurance Trust)

Liability and Indemnification. (a) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Sub-AdviserSubadviser, 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 a the Fund, the 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 Sub-Adviser Subadviser with respect to a 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 Sub-Adviser Subadviser for, and Sub-Adviser Subadviser shall indemnify and hold harmless the Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of the Fund and 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Sub-Adviser Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Sub-Adviser the Subadviser contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a the Fund or the omission to state therein a material fact regarding Sub-Adviser 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 the Manager or a the Fund by Sub-Adviser the Subadviser Indemnitees (as defined below) for use therein; or (iii) any violation of federal or state statutes or regulations by Sub-AdviserSubadviser. It is further understood and agreed that Sub-Adviser Subadviser may rely upon information furnished to it by the Manager that it reasonably believes to be accurate and reliable. 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 of limitation of any rights which the Manager may have under any securities laws. (b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Manager and the Funds Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Sub-Adviser Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons thereof (as described in in, Section 15 of the 1933 Act) (collectively, “Sub-Adviser "Subadviser Indemnitees") as a result of any error of judgment or mistake of law by the Manager with respect to the FundsFund, 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 for, and the Manager shall indemnify and hold harmless Sub-Adviser Indemnitees the Subadviser lndemnitees against any and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which any of Sub-Adviser the 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: of or based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of the Manager in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact contained in the applicable Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Funds Fund or the omission to state therein a material fact regarding the Funds or known to Manager which was required to be stated therein or necessary to make the statements therein not misleading, if unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Sub-Adviser by Manager or the Fund and the Manager Indemnitees by a Subadviser Indemnitee for use therein; , or (iii) any violation of federal or state statutes or regulations by the Manager or 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 of limitation of any rights which Sub-Adviser may have under any securities laws. (c) After receipt by the Manager or Sub-AdviserSubadviser, its affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, if a claim in respect thereof is to be made against any person obligated to provide indemnification under this section ("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 the claim that has been served upon the Indemnified Party; provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability 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 to represent the Indemnified Party in the proceeding, and shall pay the reasonable fees and disbursements of such 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 both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.

Appears in 1 contract

Samples: Subadvisory Agreement (Pax World Funds Series Trust I)

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