Liability of the Engineer Sample Clauses

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Liability of the Engineer 

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Related to Liability of the Engineer

• Liability of the Evaluator The Trustee, the Depositor and the Unit holders may rely on any Evaluation furnished by First Trust Advisors L.P., acting in its capacity as Evaluator, and shall have no responsibility for the accuracy thereof. The determinations made by the Evaluator hereunder shall be made in good faith upon the basis of the best information available to it. The Evaluator shall be under no liability to the Trustee, the Depositor or the Unit holders for errors in judgment; provided, however, that this provision shall not protect the Evaluator against any liability to which it would otherwise be subject by reason of 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 hereunder.

• Liability of the Bank (a) The Applicant assumes all risks of the acts or omissions of the Trustee, or any agent of the Trustee, and any transferee beneficiary of the Letter of Credit with respect to its use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (i) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee and any transferee beneficiary in connection therewith; (ii) the validity or genuineness of documents, or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged; or (iii) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, however, that the Applicant shall have a claim against the Bank, and the Bank shall be liable to the Applicant, to the extent of any direct compensatory, as opposed to consequential, damages suffered by the Applicant which the Applicant proves were caused by the Bank's failure to act in good faith or to observe general banking usage in connection with the Letter of Credit or failure to examine documents presented under the Letter of Credit with care to determine whether they comply with the terms of the Letter of Credit (it being understood that the Bank assumes no liability or responsibility for the genuineness, falsification or effect of any document which appears on such examination to regular on its face). The Bank is hereby expressly authorized and directed to honor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between or among the Applicant, the Trustee, any transferee beneficiary of the Letter of Credit or any other Person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit are true and correct. (b) The Bank represents and warrants to the Applicant that it has all necessary authority to enter into this Agreement and to issue the Letter of Credit.

• Liability of the Manager No provision of this Agreement shall be deemed to protect the Manager against any liability to the Fund or the shareholders of the Portfolio to which it might otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its duties or the reckless disregard of its obligations under this Agreement.

• Liability of the Parties 16.1 Whilst the Parties shall make all reasonable attempts to mitigate loss, each Party (“the indemnifying Party”) shall be liable for and indemnify the others against any expense, liability, loss, claim or proceeding whatsoever arising under any statute or at common law in respect of personal injury to or death of any person whomsoever arising out of or in the course of or caused by any act or omission of that indemnifying Party in respect of its role in the activities of the Joint Committee and/or under this Agreement and /or where acting as Lead Authority . 16.2 Whilst the Parties shall make all reasonable attempts to mitigate loss, each Party (“the indemnifying Party”) shall be liable for and shall indemnify the others against any reasonable expense, liability, loss, claim or proceeding in respect of any injury or damage whatsoever to any property real or personal in so far as such injury or damage arises out of or in the course of or is caused by any act or omission of that indemnifying Party in respect of its role in the activities of the Joint Committee and/or under this Agreement and/or where acting as Lead Authority . 16.3 Whilst the Parties shall make all reasonable attempts to mitigate loss, each Party (“the indemnifying Party”) shall indemnify the others in respect of any reasonable loss caused to each of the other Parties as a direct result of that indemnifying Party’s negligence, wilful default or fraud or that of any of the indemnifying Party’s employees in respect of its role in the activities of the Joint Committee and/or under this Agreement and/or where acting as Lead Authority. 16.4 Where a Party is appointed the Lead Authority under the terms of clause 12 of this Agreement, the other Parties shall each indemnify the Lead Authority on pro rata basis according to the proportions of their respective financial commitments as set out in Clause 10 of this Agreement with the intent that the Lead Authority shall itself be responsible for its own pro-rata share.

• Liability of the Company The Company shall be liable in accordance herewith only to the extent of the obligations specifically imposed upon and undertaken by the Company herein.

• Liability of the Seller The Seller shall be liable in accordance herewith only to the extent of the obligations in this Agreement specifically undertaken by the Seller and with respect to its representations and warranties expressly set forth hereunder.

• Responsibility of the Parties The Parties undertake to indemnify each other for any damage (loss) caused by their partial or complete non-performance or improper performance of the Agreement, and the indemnification of damage (loss) does not relieve the Parties from the performance/payment of their obligations under the Agreement. In addition, the Customer shall be liable for any damage (loss) caused to the Bank by its partial or complete non-performance or improper performance of the Agreement. Inter alia, in the event of a breach of the term specified in the subsection 3.3.6. of Annex N1 to the Bank Guarantee Agreement, Bank is entitled to charge the Customer with additional amount of the respective Interest (as the damage (loss) inflicted) for the period of breach of the term or the Bank shall be entitled to repay the above obligations not later than 14 (fourteen) calendar days after the written application. Indemnification of the damage (loss) does not release the Customer from the performance/payment of the obligations under the Agreement. Notwithstanding the guarantees specified in Sections 5.1 and 5.2. of Annex N1 to the Bank Guarantee Agreement, in order to ensure full and proper performance of the Customer’s obligations under the Agreement, and, respectively, to secure the Bank’s rights and claims, the Customer hereby expressly gives its prior consent that the Bank is fully authorized to: In the case of several debt arrears, determine the sequence and order of payments of Bank Guarantee and the payments under it; Block any Account of the Customer without acceptance in the amount of the payment due and in accordance with its applicable rules until any payment is under the Agreement is fully and duly covered; Write off without acceptance all payments due from the any Account of the Customer, and if the payment due and the amount available on the Account are in different currencies, the Bank itself can perform conversion at the commercial rate of exchange applicable at the Bank on the date of payment or the rate of exchange agreed with the Customer (if any), and write off also the conversion cost without acceptance from the Account, and channel the converted amount to cover the appropriate payments. During the period of Force Majeure, the Bank shall not be liable for complete or partial nonfulfillment or improper fulfillment of its obligations under the Agreement. In the event of Force Majeure, the Parties shall be guided by ICC Uniform Rules. Any official communication between the Parties shall be in writing. The written notice intended to the Party may be delivered in person or sent by a courier (including an international courier) or through a post delivery (including by a registered letter). For urgency and subject to the following provisions, except by submitting to the Customer a claim for full performance of its obligations under the Agreement or notifying about the complete or partial termination of the Agreement, it is permissible to notify the other Party by email or other electronic means (including via mobile banking, internet banking) provided that upon request of the other Party, such notice shall also be provided in writing within a reasonable time. The notice shall be deemed to have been accepted by the addressee on the day of its receipt if the receipt of the notice is confirmed by the addressee (including by electronic document, receipt, other appropriate means of notification, etc.). If the receipt of the notice is not confirmed by the addressee, any such notice shall be deemed to have been sent and received accordingly: In case of sending a written message by a courier or registered mail - on the day of confirmation of delivery; In case of sending by email and/or other electronic means - on the second Banking Day after the date of sending; Notice shall be deemed to have been received even if the notice is returned to the notifying Party due to the absence of the addressee of the notification on the sent address/contact data, the addressee refuses to receive the notice or avoids receiving it. The Parties will communicate according to the addresses/contact details specified in the Agreement (or any other address/contact information that one Party will provide in writing to the other). The Party is obliged to notify the other Party on the change of the above address or any of their data in a timely manner, otherwise the communication (notification etc.) carried out to the address indicated by the Party shall be deemed to have been duly performed.

• Liability of the Adviser (a) The Adviser shall have responsibility for the accuracy and completeness (and liability for the lack thereof) of statements in the Fund's Disclosure Documents. (b) The Adviser shall be liable to the Fund for any loss (including transaction costs) incurred by the Fund as a result of any investment made by the Adviser in contravention of: (i) any investment policy, guideline or restriction set forth in the Registration Statement or as approved by the Board from time to time and provided to the Adviser; or (ii) applicable law, including but not limited to the 1940 Act and the Code (including but not limited to the Fund's failure to satisfy the diversification or source of income requirements of Subchapter M of the Code) (the investments described in this subsection (b) collectively are referred to as "Improper Investments"). (c) The Adviser shall indemnify and hold harmless the Trust, each affiliated person of the Trust within the meaning of Section 2(a)(3) of the 1940 Act, and each person who controls the Trust within the meaning of Section 15 of the 1933 Act (any such person, an "Indemnified Party") against any and all losses, claims, damages, expenses or liabilities (including the reasonable cost of investigating and defending any alleged loss, claim, damage, expense or liability and reasonable counsel fees incurred in connection therewith) to which any such person may become subject under the 1933 Act, the 1934 Act, the 1940 Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, expenses or liabilities (or actions in respect thereof) arise out of or are based upon: (i) a breach by the Adviser of this Agreement or of the representations and warranties made by the Adviser herein; (ii) any Improper Investment; (iii) any untrue statement or alleged untrue statement of a material fact contained in any Disclosure Document or the omission or alleged omission from a Disclosure Document of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iv) the Adviser's performance or non-performance of its duties hereunder; provided, however, that nothing herein shall be deemed to protect any Indemnified Party who is a Trustee or officer of the Trust against any liability to the Trust or to its shareholders to which such Indemnified Party would otherwise be subject by reason or willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such person's office with the Trust.

• Liability of Evaluator The Trustee, FTPS Unit Servicing Agent, Depositor and the Unit holders may rely on any Evaluation furnished by First Trust Advisors, L.P., acting in its capacity as Evaluator, and shall have no responsibility for the accuracy thereof. The determinations made by the Evaluator hereunder shall be made in good faith upon the basis of the best information available to it. The Evaluator shall be under no liability to the Trustee, FTPS Unit Servicing Agent, Depositor or the Unit holders for errors in judgment; provided, however, that this provision shall not protect the Evaluator against any liability to which it would otherwise be subject by reason of 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 hereunder." M. The second sentence of the first paragraph of Section 5.01 shall be amended to delete subsection (ii) of such sentence and replace it in its entirety with the following:

• Liability of Consultant In furnishing the Company with management advice and other services as herein provided, Consultant shall not be liable to the Company or its creditors for errors of judgment or for anything except malfeasance or gross negligence in the performance of his duties or reckless disregard of the obligations and duties under the terms of this Agreement. It is further understood and agreed that Consultant may rely upon information furnished to it reasonably believed to be accurate and reliable and that, except as set forth herein in the first paragraph of this Section 12, Consultant shall not be accountable for any loss suffered by the Company by reason of the Company's action or non-action on the basis of any advice, recommendation or approval of Consultant. The parties further acknowledge that Consultant undertakes no responsibility for the accuracy of any statements to be made by management contained in press releases or other communications, including, but not limited to, filings with the Securities and Exchange Commission and the National Association of Securities Dealers, Inc.