Common use of LIABILITY, INDEMNIFICATION AND FORCE MAJEURE Clause in Contracts

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Agreement.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Agreement.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Agreement.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated personspersons (within the meaning of Section 2(a)(3) of the 1940 Act), persons who, within the meaning of Section 15 of the Securities Act of 1933, as amended control (a "controlling person") the Sub-Adviser, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. 13.3. Subject to the proviso in Section 3.2 and the last sentence in Section 3.3, the Sub-Adviser shall indemnify the Manager, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Sub-Adviser's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser to the Manager, the Portfolio, the Company or any affiliated person of the Manager, the Portfolio or the Company or upon verbal confirmation confirmed by the Sub-Adviser in writing, or to the extent of, and as a result of, the material failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of the 1940 Act; provided that in no case is the Sub-Adviser's indemnity in favor of the Manager or any affiliated person or controlling person of the Manager deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, Custodian, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Agreement. 13.4. Neither party shall be held responsible for their nonperformance of any of their obligations under this Agreement by reason of any cause beyond their control, including any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any relevant exchange, clearing house and/or broker for any reason to perform its obligations; provided, however, that each party shall have adequate disaster recovery plans and facilities in place at all times.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Interim Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Interim Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' ’ fees, which may be sustained as a result of the Manager's ’s willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's ’s indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Interim Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's ’s assets not managed by the Sub-Adviser pursuant to this Interim Agreement. 13.3. The Sub-Adviser shall indemnify the Manager, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys’ fees, which may be sustained as a result of the Sub-Adviser’s willful misconduct, bad faith, negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser to the Manager, the Portfolio, the Company or any affiliated person of the Manager, the Portfolio or the Company or upon verbal confirmation confirmed by the Sub-Adviser in writing, or to the extent of, and as a result of, the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of the 1940 Act; provided, however, that in no case is the Sub-Adviser’s indemnity in favor of the Manager or any affiliated person or controlling person of the Manager deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Interim Agreement. 13.4. Neither party shall be held responsible for their nonperformance of any of their obligations under this Interim Agreement by reason of any cause beyond their control, including any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any relevant exchange, clearing house and/or broker for any reason to perform its obligations ;provided, however, that each party shall have adequate disaster recovery plans and facilities in place at all times.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Interim Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Interim Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Interim Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Interim Agreement.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' ’ fees, which may be sustained as a result of the Manager's ’s willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's ’s indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's ’s assets not managed by the Sub-Adviser pursuant to this Agreement. 13.3. The Sub-Adviser shall indemnify the Manager, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys’ fees, which may be sustained as a result of the Sub-Adviser’s willful misconduct, bad faith, negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser to the Manager, the Portfolio, the Company or any affiliated person of the Manager, the Portfolio or the Company or upon verbal confirmation confirmed by the Sub-Adviser in writing, or to the extent of, and as a result of, the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of the 1940 Act; provided, however, that in no case is the Sub-Adviser’s indemnity in favor of the Manager or any affiliated person or controlling person of the Manager deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. 13.4. Neither party shall be held responsible for their nonperformance of any of their obligations under this Agreement by reason of any cause beyond their control, including any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any relevant exchange, clearing house and/or broker for any reason to perform its obligations; provided, however, that each party shall have adequate disaster recovery plans and facilities in place at all times.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. 13.1 The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the PortfolioPortfolios, its shareholders, FBIC contract owners or its shareholders First Fortis contract owners in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. 13.2 The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' fees, Adviser against all claims which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by against the Sub-Adviser in writing; providedconnection with the exercise of the powers and discretions conferred upon it pursuant to this Agreement, howeverexcept insofar as such claims allege or are the result of the willful misfeasance, that in no case is the Manager's indemnity in favor bad faith or gross negligence of the Sub-Adviser or any of its affiliated person firms or controlling person its or their employees, officers or directors or its or their breach of this Agreement or violation of applicable law. Conversely, the Sub-Adviser deemed to protect such person shall indemnify the Manager and the Company against any liability to which any such person would otherwise be subject by reason of all claims alleging or resulting from the willful misconductmisfeasance, 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. Without limiting the foregoing, the Sub-Adviser or any of its affiliated firms or its or their employees, officers or directors or its or their breach of this Agreement or violation of applicable law. 13.3 Neither party shall have no liability be held responsible for their non-performance of any of their obligations under this Agreement by reason of any cause beyond their control, including any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any relevant exchange, clearing house and/or broker for any act reason to perform its obligations. 13.4 Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from liability which it may have to any indemnified party otherwise than under this Section 9. In case any such action is brought against any indemnified party, and it notified the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish and unless the indemnified party releases the indemnifying party from any further obligations under this Section 9 in connection with that action, assume the defense thereof, with counsel satisfactory to such indemnified party. After notice from the indemnifying party of its intention to assume the defense of an action, the indemnified party shall bear the expenses of any additional counsel obtained by it, and the indemnifying party shall not be liable to such indemnified party under this section for any legal or omission taken other expenses subsequently incurred by such indemnified party in connection with the Manager, another Sub-Adviser, or any other third party defense thereof other than third parties retained, employed or otherwise acting at the behest reasonable costs of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Agreementinvestigation.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employees, officers, or directors will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys' ’ fees, which may be sustained as a result of the Manager's ’s willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's ’s indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's ’s assets not managed by the Sub-Adviser pursuant to this Agreement. 13.3. The Sub-Adviser shall indemnify the Manager, its affiliated persons, its officers, directors and employees, for any liability and expenses, including reasonable attorneys’ fees, which may be sustained as a result of the Sub-Adviser’s willful misconduct, bad faith, negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser to the Manager, the Portfolio, the Company or any affiliated person of the Manager, the Portfolio or the Company or upon verbal confirmation confirmed by the Sub-Adviser in writing, or to the extent of, and as a result of, the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of the 1940 Act; provided, however, that in no case is the Sub-Adviser’s indemnity in favor of the Manager or any affiliated person or controlling person of the Manager deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. 13.4. Neither party shall be held responsible for their nonperformance of any of their obligations under this Agreement by reason of any cause beyond their control, including any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any relevant exchange, clearing house and/or broker for any reason to perform its obligations ;provided, however, that each party shall have adequate disaster recovery plans and facilities in place at all times.

LIABILITY, INDEMNIFICATION AND FORCE MAJEURE. 13.1. The Sub-Adviser, its affiliated firms or its or their employeespartners, officers, employees or directors officers will not be liable for any error of judgment or mistake of law or for any loss suffered by the Portfolio, or its shareholders shareholders, in connection with the performance of their duties under this Agreement, except for loss resulting from willful misfeasance, bad faith or gross negligence on their part in the performance of their duties or from reckless disregard by them of their duties under this Agreement. 13.2. The Manager shall indemnify the Sub-Adviser, its affiliated persons, its officerspartners, directors officers and employees, for any liability and expenses, including reasonable attorneys' fees, which may be sustained as a result of the Manager's willful misconduct, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the 1940 Act and federal and state securities laws, or as a result of any untrue statement of a material fact contained in the Registration Statement, Prospectus covering shares of the Portfolio, Portfolio marketing materials and advertising, including any amendment thereof or any supplement thereto, or the omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser in writing; provided, however, that in no case is the Manager's indemnity in favor of the Sub-Adviser or any affiliated person or controlling person of the Sub-Adviser deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Without limiting the foregoing, the Sub-Adviser shall have no liability for any act or omission taken by the Manager, another Sub-Adviser, or any other third party other than third parties retained, employed or otherwise acting at the behest of the Sub-Adviser, in respect of any portion of the Portfolio's assets not managed by the Sub-Adviser pursuant to this Agreement.