LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC or any of its affiliates or partners, officers, directors, employees or agents (each such entity or person, the “Indemnified Person") shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result of or in connection with the Client’s use of the Services, or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct). 17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with: 17.2.1. the Client's any non-compliance with this Agreement; 17.2.2. TBCC entering into any Transaction under to this Agreement; 17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default; 17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website. 17.2.5. any third-party actions related to the use of the Investment Account; 17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement. 17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission; 17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions; 17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement; 17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or 17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct. 17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person. 17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client. 17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions. 17.6. This Clause shall survive any termination of the Client relationship.
Appears in 4 contracts
Samples: Master Agreement, Master Agreement, Master Agreement
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC The Bank or any of its affiliates or partners, officers, directors, employees or agents (each such entity or person, the “an "Indemnified Person") shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) otherwise suffered or incurred by the Client Customer as a result of or in connection with the ClientCustomer’s use of the Servicesservices, or any matters pertaining to the ClientCustomer’s Investment Account, or due to actions taken by TBCC the Bank according to its rights under this Brokerage Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCCthe Bank’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses Losses (regardless of whether such damages or losses Losses were reasonably foreseeable or arise from TBCCthe Bank’s gross negligence or intentional misconductnegligence).
17.2. The Client Customer acknowledges, recognizes and accepts that any market information that may be communicated by the Bank does not constitute an offer to buy or sell or the solicitation of an offer to buy or sell Securities and that such recommendation and information, although based upon information from sources believed by the Bank to be reliable, may be based solely on a broker's opinion and that such information may be incomplete and may be unverified and unverifiable. The Bank is not obliged to inquire, monitor, investigate or check such information, though the Bank shall use reasonable endeavors that such information is reliable. In any case, the Bank makes no representation, warranty or guarantee as to, and shall not be responsible for, the accuracy or completeness of any information or trading recommendation furnished to the Customer.
17.3. Indemnified Persons are not liable for and the Customer is obliged to compensate, indemnify and hold harmless the Indemnified Person Persons from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.117.3.1. the ClientThe Customer's any non-compliance with this Brokerage Agreement;
17.2.217.3.2. TBCC The Bank entering into any Transaction under to this AgreementTransaction;
17.2.317.3.3. TBCC The Bank taking any of the steps which TBCC the Bank is entitled to take in an Event event of Default;
17.2.417.3.4. any thirdAny Third-party Party actions related to the receipt and use by the Client Customer of the Content or other third-party Third- Party content, or or/and other such information obtained on the Investment Module or the Bank’s Website.;
17.2.517.3.5. any thirdAny Third-party Party actions related to the use of the Investment Account;
17.2.617.3.6. any thirdAny Third-party Party claims against the Client Customer arising out of or related to the Services and/or this Agreement.services or/and this
17.2.717.3.7. ClientThe Customer’s or Customer’s agent’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.817.3.8. Indemnified Persons following ClientCustomer’s directions or Customer’s agent’s instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;follow
17.2.917.3.9. any Any activities or services of the Indemnified Persons in connection with the Investment Account as per ClientCustomer’s instructions and/or or/and in compliance with this Brokerage Agreement;
17.2.1017.3.10. any Any activities or services of the Third-Party Independent Broker in connection with the Investment Account; or/Account;
17.2.1117.3.11. Any of the Customer’s actions or the actions of the Customer’s agent, prior to the commencement of the broker's activities;
17.3.12. The failure by any person Third Party not controlled by TBCC the Bank (for the avoidance of any doubt, this shall include any of TBCCthe Bank’s associates and affiliates or Third-Party Brokeraffiliates) to perform any obligations to the Client; Unless Customer, unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's the Bank’s gross negligence or willful misconduct.
17.317.4. The Client Customer agrees that, without the prior written consent of TBCCthe Bank, it will shall not settle, compromise or consent or offer to settle, compromise or or/and consent to the entry a protocol of any judgment in any pending or threatened claim, action claim or proceeding which relates TBCCto the Bank’s engagement hereunderunder this Brokerage Agreement, unless such settlement, compromise or consent includes an unconditional release of TBCCthe Bank, and the other Indemnified Persons from all liability arising out of such claim, action claim or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any the Indemnified PersonPersons.
17.417.5. The foregoing exculpatory and indemnity provisions are in addition and without prejudice to all other exculpations and indemnities expressed or implied for the benefit of the Bank generally available to the Bank at law or otherwise.
17.6. Nothing in this Brokerage Agreement shall be construed to designate TBCC the Bank or any other Indemnified Persons as a fiduciary to the ClientCustomer.
17.517.7. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under The provisions of this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures Chapter 17 of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions.
17.6. This Clause Brokerage Agreement shall survive any termination of the Client relationshipCustomer relationship defined in this Brokerage Agreement.
Appears in 3 contracts
Samples: Brokerage Service Agreement, Brokerage Service Agreement, Brokerage Service Agreement
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC or any 9.1 SGS undertakes to exercise due care and skill in the performance of its affiliates or partners, officers, directors, employees or agents (each such entity or person, the “Indemnified Person") shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes Services and accepts responsibility only in cases of action, penalties, fines and taxes proven negligence.
9.2 The liability of SGS to the Client in respect of any kind claim for loss, damage or expense of any nature (including legal expenses and attorneys' fees) (whether known howsoever arising shall be limited, in respect of any one event or unknownseries of connected events, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result of or in connection with the Client’s use of the Services, or any matters pertaining an amount equal to the Client’s Investment Accountfees paid to SGS under the Contract (excluding Value Added Tax thereon) or EUR 20’000, or due to actions taken by TBCC according to its rights under this Agreement, except to whichever is the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct)lesser.
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC 9.3 SGS shall not be liable to the Client nor to any third party:
(a) for any Lossloss, failure, hindrance damage or delay in performing expense arising from (i) a failure by the Client to comply with any of its obligations under this Agreement where such Lossthe Contract, failure, hindrance (ii) any actions taken or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures not taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to on the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures basis of the mails Reports or other communications systemsthe Certificates; and (iii) any incorrect results, mechanical Reports or electronic failureCertificates arising from unclear, failure erroneous, incomplete, misleading or false information provided to SGS;
(b) for loss of profits, loss of production, loss of business or costs incurred from business interruption, loss of revenue, loss of opportunity, loss of contracts, loss of expectation, loss of use, loss of goodwill or damage to reputation, loss of anticipated savings, costs or expenses incurred in mitigating loss and loss or damage arising from the claims of any third parties to follow instructions, party that may be suffered by the Client and
(c) any indirect or for consequential loss or damage of any other cause not reasonably within TBCC’s control, kind whatsoever (whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsfalling within the types of loss or damage identified in (b) above).
17.6. This Clause 9.4 SGS shall survive any termination be discharged from all liability for all claim for loss, damage or expense unless suit is brought within one year from:
(i) the date of the performance by SGS of the service which gives rise to the claim; or
(ii) the date when the service should have been completed in the event of any alleged non-performance.
9.5 Except for cases of proven negligence or fraud by SGS, the Client relationshipfurther agrees to hold harmless and indemnify SGS and its officers, employees, agents or subcontractors against all claims (actual or potential) of any third party for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising relating to the performance, purported performance or non- performance, of the Services.
9.6 Each Party shall take out adequate insurance to cover its liabilities under the Contract and in tort.
Appears in 3 contracts
Samples: General Conditions, Validation or Verification Service Agreement, General Conditions
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC or any of its affiliates or partners, officers, directors, employees or agents 11.1 The Supplier agrees that all Goods (each such entity or person, including Hired Goods) and their use shall be at the “Indemnified Person") shall Customer’s sole risk and the Supplier will not be liable for any expensesloss, lossesdamage or injury that the Customer may incur or that may arise from any cause whatsoever including any fault or other defect in the Goods and/or Hired Goods.
11.2 The Customer agrees that the Supplier is not liable for any special, costsindirect or consequential loss arising in any way in respect of the Goods and/or Hired Goods or their use provided and this exclusion of liability applies whether that loss or liability arises at general law or under these Terms and whether or not including loss or liability arising as a consequence of negligence.
11.3 The Supplier is not liable for any loss or damage to any property or for death or personal injury (to the Customer’s personal or any another person) caused or contributed in the installation or dismantling of Hired Goods (whether by negligence or otherwise).
11.4 The Customer accepts full responsibility for, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes indemnifies the Supplier against all claims in respect of any kind injury to persons, or nature (including legal expenses damage to property, arising out of the use of the Goods and/or Hired Goods however arising, whether from the Customer’s negligence or that of the Supplier and attorneys' fees) (without limiting the foregoing whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accruedthe Goods and/or Hired Goods were being operated or transported by an agent or servant of the Supplier’s or any other person for whose acts the Supplier may be held to be responsible for.
11.5 The Customer agrees to indemnify the Supplier for any costs or loss or damage incurred in recovering Goods and/or Hired Goods, asserted whether those Goods and/or Hired Goods were abandoned, unlawfully detained or unassertedotherwise not returned to the Supplier in accordance with these Terms.
11.6 Without limiting the Supplier’s liability at law in tort, related or not related the Customer agrees to a third party claimindemnify, and keep indemnified, the Supplier and its directors, officers, agents and assigns against any liability for any claims made against the Supplier, or otherwise) (“Loss”) suffered or incurred by the Client as a result employees, arising out of or in connection with any breach by the Client’s Customer of this application or these Terms, or any loss, damage or injury suffered by a third party, caused by any negligence, or deliberate act, by the Supplier and its directors, officers, agents and assigns in the course of installing or dismantling Goods and/or Hired Goods for the Customer.
11.7 Where the Supplier gives advice, recommendations, information, assistance and/or service to the Customer regarding the suitability or purpose of the Goods and/or Hired Goods, or in connection with the design, delivery times, dimensions, installation or use of the ServicesGoods and/or Hired Goods, or any matters pertaining to then it is given in good faith and the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person Supplier shall not be liable under in any circumstances way whatsoever for any indirect, special, incidental or consequential damages, lost profit losses or other losses (regardless of whether costs however arising resulting from the Customer relying on any such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct)advice, recommendations, information, assistance and/or service.
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 2 contracts
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except for damage resulting from the willful misconduct of Landlord or any its employees, agents, contractors, and other authorized representatives and subject to the provisions of its affiliates or Section 11.6, Tenant shall protect, defend (with counsel acceptable to Landlord) and hold Landlord and Landlord’s Mortgagees, partners, officersemployees, directorsagents, employees or agents representatives, legal representatives, successors and assigns (each such entity or personcollectively, the “Indemnified Person"Landlord Indemnitees”) harmless and indemnify the Landlord Indemnitees from and against all liabilities, damages, claims, losses, judgments, charges and expenses (including reasonable attorney fees, court costs and expenses incurred in consulting about, negotiating, prosecuting or defending any claim, including the enforcement of this provision) (“Claims”) arising from or in any way related to, directly or indirectly, but only to the extent such claim would not be covered by insurance Landlord maintains or that this Lease obligates Landlord to maintain: (i) injury to or death of persons or damage to property or business loss occurring or resulting directly or indirectly from any occurrence in the Premises, regardless of whether the Landlord Indemnitees are or are claimed to be responsible for such injury, death, or damage; (ii) work or labor performed, or for materials or supplies furnished to or at the request of Tenant in connection with performance of any work done for the account of Tenant at the Property; (iii) any breach by Tenant of this Lease; and/or (iv) the negligence or willful misconduct of Tenant or any Tenant Party. Except for damage resulting from the willful misconduct of Landlord or its employees, agents, contractors, and other authorized representatives, Landlord shall not be liable to Tenant for any loss or damage to any Tenant Party’s property, for any injury to or loss of Tenant’s business, or for any damage or injury to any person from any cause whatsoever, including, but not limited to, any acts, errors or omissions by or on behalf of any other tenants or occupants of the Property. Landlord and its authorized representatives shall not be liable for any expensesinterference with light or air, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes or for any latent defect in the Premises. Except for damage resulting from the willful misconduct of any kind or nature Tenant Party and subject to the provisions of Section 11.6, Landlord shall protect, defend (including with counsel acceptable to Tenant) and hold Tenant and Tenant’s partner’s, employees, agents, representatives, legal expenses representatives, successors and attorneys' fees) assigns (whether known or unknowncollectively, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (the “LossTenant Indemnitees”) suffered or incurred by harmless and indemnify the Client as a result of Tenant Indemnitees from and against all Claims arising from or in connection with the Client’s use of the Servicesany way related to, directly or any matters pertaining to the Client’s Investment Accountindirectly, or due to actions taken by TBCC according to its rights under this Agreement, except but only to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall claim would not be liable under any circumstances for any indirect, special, incidental covered by insurance Tenant maintains or consequential damages, lost profit that this Lease obligates Tenant to maintain: (i) injury to or other losses (regardless death of whether such damages persons or losses were reasonably foreseeable damage to property or arise from TBCC’s gross negligence business loss occurring or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises resulting directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared any occurrence in any part of the Property other than the Premises, regardless of whether the Tenant Indemnitees are or imminent warare claimed to be responsible for such injury, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycottsdeath, or blockadesdamage; (ii) any breach by Landlord of this Lease; and/or (iii) the negligence or willful misconduct of Landlord or its employees, notwithstanding that TBCC is a party to the conflict agents, contractors, and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsauthorized representatives.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (WuXi PharmaTech (Cayman) Inc.)
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except for charges, taxes or penalties for which the Trustee is liable and that cannot be charged against or deducted from the Fund in accordance with the Act, if the Trustee or the Agent is liable for:
(a) any tax, interest or penalty that may be imposed on the Trustee in respect of the Plan, or the purchase, sale or retention of any investment;
(b) any other charges levied or imposed by any governmental authority on or related to the Plan as a result of the purchase, sale or retention of any investment including, without limitation thereof, nonqualified investments within the meaning of the Act, the Trustee or Agent shall be reimbursed or may pay any of its affiliates these taxes, interest, penalties or partnerscharges out of the Fund. The Trustee and the Agent will not be liable (including for greater certainty under any common law or equitable principles) for any cost incurred in the performance of their duties as set out herein or in the performance of their duties under the Act. Unless caused by the Trustee’s or the Agent’s bad faith, officers, directors, employees willful misconduct or agents (each such entity or personnegligence, the “Indemnified Person") shall Trustee and the Agent will not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind loss or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) damage suffered or incurred by the Client Plan, the Planholder or any beneficiary under the Plan, caused by or resulting from:
(a) Any loss or diminution of the assets of the Plan;
(b) The purchase, sale or retention of any investment;
(c) Payments out of the Plan that are made in accordance herewith; or
(d) Acting or declining to act on any instructions given to the Trustee or Agent by the Planholder or an individual purporting to be the Planholder. For greater certainty, in no event shall either the Trustee or its Agent have any liability to the Planholder (or to the spouse or common-law partner of the Planholder, or any beneficiary or legal personal representative of the Planholder) for any special, indirect, reliance, incidental, punitive, consequential, economic or commercial loss or damage of any kind whatsoever (whether foreseeable or not), suffered or incurred by the Planholder or any beneficiary under the arrangement (including without limitation, loss of profits or revenue, failure to realize expected savings or other economic losses and costs), howsoever arising, resulting or caused. Except as otherwise prohibited by law, the Planholder, his/her legal personal representatives and each beneficiary of this Plan will at all times indemnify and save harmless the Trustee and its Agent in respect of any taxes, interest and penalties which may be imposed on the Trustee in respect of the Plan or any losses incurred by the Plan as a result of the acquisition, retention or in connection with the Client’s use transfer of the Services, any investment or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of payments or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any distributions out of the steps which TBCC is entitled to take Plan made in an Event of Default;
17.2.4. any third-party actions related to the receipt accordance with these terms and use by the Client of the Content conditions or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence the Trustee or willful misconduct.
17.3its Agent acting or declining to act upon any instructions given to it by the Planholder and any costs or expenses of the Trustee and the Agent related thereto (including legal fees). The Client agrees thatExcept as otherwise prohibited by law, without in the prior written consent event the Planholder breaches this Trust Agreement, the Planholder, his/ her legal personal representatives and each beneficiary of TBCC, it this Plan will not settle, compromise or consent or offer to settle, compromise or consent to indemnify and save harmless the entry Trustee and its Agent in respect of any judgment loss, damage, or other expense (including legal fees) incurred by the Trustee or the Agent related to such breach. In all cases where the Trustee or the Agent are entitled to be indemnified in any pending or threatened claimaccordance with the Act, action or proceeding which relates TBCC’s engagement hereunder, unless they shall be entitled to cause such settlement, compromise or consent includes an unconditional release of TBCC, indemnity to be paid from the Fund. If the Fund is insufficient to indemnify the Trustee and the other Indemnified Persons from all liability arising out of such claimAgent fully, action or proceeding the Planholder agrees to indemnify and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to hold the Client.
17.5. TBCC shall not be liable to Trustee and the Client Agent harmless for any Losssuch costs, failureexpenses, hindrance charges or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsliabilities.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Client Agreements
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except to the extent of damage resulting from the gross negligence or any willful misconduct of Landlord or its affiliates or authorized representatives, Tenant agrees to protect, defend (with counsel acceptable to Landlord) and hold Landlord and Landlord’s lenders, partners, members, property management company (if other than Landlord), agents, directors, officers, employees, representatives, contractors, successors and assigns and each of their respective partners, members, directors, employees or agents heirs, employees, representatives, agents, contractors, heirs, successors and assigns (each such entity or personcollectively, the “Indemnified Person"Indemnitees”) harmless and indemnify the Indemnitees from and against all liabilities, damages, demands, penalties, costs, claims, losses, judgments, charges and expenses (including reasonable attorneys’ fees, costs of court and expenses necessary in the prosecution or defense of any litigation including the enforcement of this provision) (collectively, “Claims”) arising from or in any way related to, directly or indirectly, (i) Tenant’s or Tenant’s Representatives’ use of the Premises and other portions of the Project, (ii) the conduct of Tenant’s business, (iii) from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises, (iv) in any way connected with the Premises, the Alterations or with the Tenant’s Property therein, including, but not limited to, any liability for injury to person or property of Tenant, Tenant’s Representatives or third party persons, and/or (v) Tenant’s failure to perform any covenant or obligation of Tenant under this Lease; provided, Tenant shall not be liable to Landlord for any repair and rebuilding costs incurred by Landlord due to damage or destruction caused by Tenant (except Tenant’s Share of any deductible) unless such damage or destruction was caused by the intentional acts or omissions of Tenant. Tenant agrees that the obligations of Tenant herein shall survive the expiration or earlier termination of this Lease. Except to the extent caused by the gross negligence or willful misconduct of Landlord, neither Landlord nor any of the Indemnitees shall be liable for and Tenant waives any claims against Landlord and the Indemnitees for injury or damage to the person or the property of Tenant, Tenant’s employees, contractors, invitees, customers or any other person in or about the Premises, Building or Project from any cause whatsoever, including, but not limited to, damage or injury which is caused by or results from (i) fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, heating, ventilating, air conditioning or lighting fixtures or (ii) from the condition of the Premises, other portions of the Building or Project. Landlord shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes damages arising from any act or neglect of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result other tenants of or in connection with the Client’s use of the Services, Landlord or any matters pertaining to the Client’s Investment Account, subtenant or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that assignee of such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly other tenants nor from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance Landlord to enforce the provisions of any doubtother lease in the Project. Notwithstanding Landlord’s negligence, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as tonegligence, or an admission ofbreach of this Lease, faultLandlord shall under no circumstances be liable for (a) injury to Tenant’s business, culpability for any loss of income or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC profit therefrom or any other Indemnified Persons as a fiduciary indirect consequential or punitive damages or (b) any damage to the Client.
17.5. TBCC shall not be liable property or injury to the Client for any Losspersons arising from strikes, failurelockouts, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent warlabor disputes, acts of terrorismGod, revoltincluding without limitation, civil unrestearthquakes, catastrophes of natureinability to obtain services, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycottslabor, or blockadesmaterials or reasonable substitutes therefor, notwithstanding that TBCC is a party governmental actions or civil commotions. Tenant shall not, in any event or circumstance, be permitted to the conflict offset or otherwise credit against any payments of Rent required herein for matters for which Landlord may be liable hereunder. Landlord and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC its authorized representatives shall not be liable for Losses caused by general market conditionsany interference with light or air, or for any latent defect in the Premises or the Building.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC or any of its affiliates or partners, officers, directors, employees or agents (each such entity or person, the “Indemnified Person") shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result of or in connection with the Client’s use of the Services, or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Master Agreement
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except for charges, taxes or penalties for which the Trustee is liable and that cannot be charged against or deducted from the Fund in accordance with the Act, if the Trustee or the Agent is liable for:
(i) any tax, interest or penalty that may be imposed on the Trustee in respect of the Plan, or
(ii) any other charges levied or imposed by any governmental authority on or relating to the Plan, as a result of the purchase, sale or retention of any investment including, without limitation thereof, nonqualified investments within the meaning of the Act, the Trustee or Agent shall be reimbursed or may pay any of its affiliates these taxes, interest, penalties or partnerscharges out of the Fund. The Trustee and the Agent will not be liable (including for greater certainty under any common law or equitable principles) for any cost incurred in the performance of their duties as set out herein or in the performance of their duties under the Act. Unless caused by the Trustee’s or the Agent’s bad faith, officers, directors, employees wilful misconduct or agents (each such entity or persongross negligence, the “Indemnified Person") shall Trustee and the Agent will not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind loss or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) damage suffered or incurred by the Client Plan, the Planholder or any beneficiary under the Plan, caused by or resulting from:
(a) any loss or diminution of theFund,
(b) the purchase, sale or retention of any investment,
(c) payments out of the Plan that are made in accordance herewith, or
(d) acting or declining to act on any instructions given to the Trustee or Agent by the Planholder or an individual purporting to be the Planholder. For greater certainty, in no event shall either the Trustee or its Agent have any liability to the Planholder (or to the spouse or common-law partner of the Planholder, or any beneficiary or legal personal representative of the Planholder) for any special, indirect, reliance, incidental, punitive, consequential, economic or commercial loss or damage of any kind whatsoever (whether foreseeable or not), suffered or incurred by the Planholder or any beneficiary under the Arrangement (including without limitation, loss of profits or revenue, failure to realize expected savings or other economic losses and costs), howsoever arising, resulting or caused. Except as otherwise prohibited by law, the Planholder, his/her legal personal representatives and each beneficiary of this Plan will at all times indemnify and save harmless the Trustee and its Agent in respect of any taxes, interest and penalties which may be imposed on the Trustee in respect of the Plan or any losses incurred by the Plan as a result of the acquisition, retention or in connection with the Client’s use transfer of the Services, any investment or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of payments or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any distributions out of the steps which TBCC is entitled to take Plan made in an Event of Default;
17.2.4. any third-party actions related to the receipt accordance with these terms and use by the Client of the Content conditions or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence the Trustee or willful misconduct.
17.3its Agent acting or declining to act upon any instructions given to it by the Planholder and any costs or expenses of the Trustee and the Agent related thereto (including legal fees). The Client agrees thatExcept as otherwise prohibited by law, without in the prior written consent event the Planholder breaches this Trust Agreement, the Planholder, his/ her legal personal representatives and each beneficiary of TBCC, it this Plan will not settle, compromise or consent or offer to settle, compromise or consent to indemnify and save harmless the entry Trustee and its Agent in respect of any judgment in any pending loss, damage, or threatened claimother expense (including legal fees) incurred by the Trustee or the Agent related to such breach. In all cases where the Trustee or the Agent are entitled to be indemnified, action or proceeding which relates TBCC’s engagement hereunder, unless they shall be entitled to cause such settlement, compromise or consent includes an unconditional release of TBCC, indemnity to be paid from the Fund. If the Fund is insufficient to indemnify the Trustee and the other Indemnified Persons from all liability arising out of such claimAgent fully, action or proceeding the Planholder agrees to indemnify and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to hold the Client.
17.5. TBCC shall not be liable to Trustee and the Client Agent harmless for any Losssuch costs, failureexpenses, hindrance charges or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsliabilities.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Client Agreements
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except for charges, taxes or penalties for which the Trustee is liable and that cannot be charged against or deducted from the Fund in accordance with the Act, if the Trustee or the Agent is liable for:
(a) any tax, interest or penalty that may be imposed on the Trustee in respect of the Plan, or
(b) any other charges levied or imposed by any governmen- tal authority on or related to the Plan as a result of the purchase, sale or retention of any investment including, without limitation thereof, nonqualified investments within the meaning of the Act, the Trustee or Agent shall be reimbursed or may pay any of its affiliates these taxes, interest, penalties or partnerscharges out of the Fund. The Trustee and the Agent will not be liable (including for greater certainty under any common law or equitable princi- ples) for any cost incurred in the performance of their duties as set out herein or in the performance of their duties under the Act. Unless caused by the Trustee’s or the Agent’s bad faith, officers, directors, employees willful misconduct or agents (each such entity or personnegligence, the “Indemnified Person") shall Trustee and the Agent will not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind loss or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) damage suffered or incurred by the Client Plan, the Planholder or any beneficiary under the Plan, caused by or resulting from:
(a) Any loss or diminution of the Fund;
(b) The purchase, sale or retention of any investment;
(c) Payments out of the Plan that are made in accordance herewith; or
(d) Acting or declining to act on any instructions given to the Trustee or Agent by the Planholder or an individual pur- porting to be the Planholder. For greater certainty, in no event shall either the Trustee or its Agent have any liability to the Planholder (or to the spouse or common-law partner of the Planholder, or any beneficiary or legal personal representative of the Planholder) for any special, indirect, reliance, incidental, punitive, consequential, economic or commercial loss or damage of any kind what- soever (whether foreseeable or not), suffered or incurred by the Planholder or any beneficiary under the Arrangement (including without limitation, loss of profits or revenue, failure to realize expected savings or other economic losses and costs), howsoever arising, resulting or caused. Except as otherwise prohibited by law, the Planholder, his/her legal personal representatives and each beneficiary of this Plan will at all times indemnify and save harmless the Trustee and its Agent in respect of any taxes, interest and penalties which may be imposed on the Trustee in respect of the Plan or any losses incurred by the Plan as a result of the acquisition, retention or in connection with the Client’s use transfer of the Services, any investment or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of payments or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any distributions out of the steps which TBCC is entitled to take Plan made in an Event of Default;
17.2.4. any third-party actions related to the receipt accordance with these terms and use by the Client of the Content conditions or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence the Trustee or willful misconduct.
17.3its Agent acting or declining to act upon any instructions given to it by the Planholder and any costs or expenses of the Trustee and the Agent related thereto (including legal fees). The Client agrees thatExcept as otherwise prohibited by law, without in the prior written consent event the Planholder breaches this Trust Agreement, the Planholder, his/her legal personal representatives and each beneficiary of TBCC, it this Plan will not settle, compromise or consent or offer to settle, compromise or consent to indemnify and save harmless the entry Trustee and its Agent in respect of any judgment loss, damage, or other expense (including legal fees) incurred by the Trustee or the Agent related to such breach. In all cases where the Trustee or the Agent are entitled to be indemnified in any pending or threatened claimaccordance with the Tax Act, action or proceeding which relates TBCC’s engagement hereunder, unless they shall be entitled to cause such settlement, compromise or consent includes an unconditional release of TBCC, indemnity to be paid from the Fund. If the Fund is insufficient to indemnify the Trustee and the other Indemnified Persons from all liability arising out of such claimAgent fully, action or proceeding the Planholder agrees to indemnify and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to hold the Client.
17.5. TBCC shall not be liable to Trustee and the Client Agent harmless for any Losssuch costs, failureexpenses, hindrance charges or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsliabilities.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except to the extent of damage resulting from the gross negligence or any willful misconduct of Landlord or its affiliates or authorized representatives, Tenant agrees to protect, defend (with counsel acceptable to Landlord) and hold Landlord and Landlord’s lenders, partners, members, property management company (if other than Landlord), agents, directors, officers, directorsemployees, employees or agents representatives, agents, contractors, heirs, successors and assigns (each such entity or personcollectively, the “Indemnified Person"Indemnitees”) harmless and indemnify the indemnitees from and against all liabilities, damages, demands, penalties, costs, claims, losses, judgements, charges and expenses (including reasonable attorney’s fees, costs of court and expenses necessary in the prosecution or defense of any litigation including the enforcement of this provision) (Collectively, “claims”) arising from or in any way related to, directly or indirectly, (i) Tenant’s or Tenant’s Representatives’ use of the Premises and other portions of the project, (ii) the conduct of Tenant’s business, (iii) from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises, (iv) in any way connected with the Premises, the Alterations or with the Tenant’s property therein, including, but not limited to, any liability for injury to person or property of Tenant, Tenant’s Representatives or third party persons, and/or (v) Tenant’s failure to perform any covenant or obligation of Tenant under this Lease; provided, Tenant shall not be liable to Landlord for any repair and rebuilding costs incurred by Landlord due to damage or destruction caused by Tenant (except Tenant’s Share of any deductible) unless such damage or destruction was caused by the intentional acts or omissions of Tenant. Tenant agrees that the obligations of Tenant herein shall survive the expiration of earlier termination or this Lease. Except to the extent caused by the gross negligence or willful misconduct of Landlord, neither Landlord nor any of the Indemnities shall be liable for and Tenant waives any claims against Landlord and the Indemnities for injury or damage to the person or the property of Tenant, Tenant’s employees, contractors, invitees, customers or any other person in or about the premises, Building or Project from any cause whatsoever, including, but not limited to, damage or injury which is caused by or results from (i) fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, heating, ventilating, air conditioning or lighting fixtures or, (ii) from the condition of the Premises, other portions of the Building or Project. Landlord shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes damages arising from any act or neglect of any kind other tenants of Landlord or nature (including legal expenses and attorneys' fees) (whether known any subtenant or unknownassignee of such other tenants nor from the failure by Landlord to enforce the provisions of any other lease in the project. Notwithstanding Landlord’s negligence, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claimgross negligence, or otherwise) (“Loss”) suffered or incurred by the Client as a result breach of or in connection with the Client’s use of the Servicesthis Lease, or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights Landlord shall under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not no circumstances be liable under for (a) injury to Tenant’s business, for any circumstances for loss of income or profit therefrom or any indirect, special, incidental consequential or consequential damages, lost profit or other losses (regardless of whether such punitive damages or losses were reasonably foreseeable (b) any damage to property or arise injury to persons arising from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensatestrikes, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party contentlockouts, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent warlabor disputes, acts of terrorismGod, revoltincluding without limitation, civil unrestearthquakes, catastrophes of natureinability to obtain services, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycottslabor, or blockadesmaterials or reasonable substitutes therefor, notwithstanding that TBCC is a party governmental actions or civil commotions. Tenant shall not, in any event or circumstance, be permitted to the conflict offset or otherwise credit against any payments of Rent required herein for matters for which Landlord may be liable hereunder. Landlord and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC its authorized representatives shall not be liable for Losses caused by general market conditionsany interference with light or air, or for any latent defect in the Premises or the Building.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
LIMITATION OF LIABILITY AND INDEMNITY. 17.18.1 The Service, its use and the results of such use are provided "as is" to the fullest extent permissible pursuant to applicable law, SURCO disclaims all warranties express or implied, including, but not limited to, implied warranties of QUICKBUY ability and fitness for a particular purpose, in relation to the Service, its use and the results of such use. TBCC Without limiting the foregoing, SURCO specifically disclaims any warranty (a) that the Service will be uninterrupted or any error-free, (b) that defects will be corrected, (c) that there are no viruses or other harmful components, (d) that the security methods employed will be sufficient, or (e) regarding correctness, accuracy, or reliability. The Service relies on the performance of its affiliates or partners, officers, directors, employees or agents (each such entity or person, the “Indemnified Person") third parties which is beyond SURCO’s control.
8.2 SURCO shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind or nature (including legal expenses and attorneys' feesi) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result of or in connection with the Client’s use of the Services, or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damagesloss of any character arising out of the use of or inability to use the Service or any information provided on the SURCO website or any other hyper linked website, including, without limitation, damages for loss of goodwill, any lost profit profits, business interruption, loss of programs or other losses (regardless data on any Affiliate’s information handling system or otherwise, even if SURCO has been advised of whether the possibility of such damages or losses were reasonably foreseeable (ii) any claim attributable to errors, omissions or arise from TBCC’s gross negligence other inaccuracies in the website or intentional misconduct)any hyper linked website.
17.2. 8.3 No warranty can be made as to the performance of QUICKBUY or the number of Visitors any Affiliate’s site may receive.
8.4 Nothing in this clause 8 excludes liability for fraudulent misrepresentation or death or personal injury caused by SURCO’s negligence.
8.5 The Client shall to compensateAffiliate will indemnify, indemnify defend, and hold harmless SURCO, QuickBuy and its, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable solicitor's fees) directly or indirectly arising from or relating to any matter related to this Agreement or the Indemnified Person from all Losses subject matter hereof and any dispute relating thereto.
8.6 SURCO makes no representations whatsoever about any other website which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. accessed through the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeableService. In addition, TBCC shall a link to a non-SURCO Website does not be liable mean that SURCO endorses or accepts any responsibility for Losses caused by general market conditionsthe content or the use of such Website.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Affiliate Agreement
LIMITATION OF LIABILITY AND INDEMNITY. 17.1Compass’ sole obligation under this Agreement is to the Client, and any advice (written or oral) given by Compass to the Client in connection with Compass’ engagement under this Agreement is solely for use and benefit of the Client. TBCC In no event, regardless of the legal theory advanced, shall any Compass party be (i) responsible other than for gross negligence, willful misconduct, bad faith or knowing violation of law or (ii) liable to any third party. The obligations of its affiliates Compass are solely corporate obligations, and no officer, director, employee, agent, consultant, shareholder or partners, officers, directors, employees or agents controlling person of Compass (each such entity or the “Compass Parties”) shall be subject to any personal liability whatsoever to any person, nor will any such claim be asserted by the “Indemnified Person") Client, whether on its own behalf or on behalf of any other person. The Client shall not be liable for indemnify, defend and hold harmless the Compass Parties against any expenses, lossesand all claims, costs, demands, damages, assessments, actions, suits or other proceedings, liabilities, demands, debts, obligations, penalties, charges, claims, causes of actionjudgments, penalties, fines or amounts paid in settlement, expenses, and taxes of any kind or nature (including legal expenses and attorneys' fees) attorney’s fees (whether known incurred at the trial or unknownappellate level, present in an arbitration, (including, without limitation, any adversary proceeding, contested matter or futureapplication), absolute or contingentotherwise notwithstanding any limitation set forth in above arising out of, liquidated connected with or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result of or in connection with the Client’s use of the Services, or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights services performed under this Agreement, whether or not such Claims are attributable in whole or in part to negligence by Compass, other than Claims that are finally determined by judgment or in binding arbitration to have resulted from acts or omissions by Compass that involve gross negligence, willful misconduct (including bad faith and self-dealing) or a knowing violation of law. Compass shall give prompt written notice to the Client of any Claim for which indemnification shall not be affected by any failure or delay by Compass to give such notice, except to the extent that such Losses are actual Losses the rights and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality remedies of the foregoing, Indemnified Person indemnifying party shall not be liable under any circumstances for any indirect, special, incidental have been materially prejudiced as a result of such failure or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2delay. The Client shall to compensatepay all costs and expenses, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or including reasonable attorneys’ fees, incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with Compass to enforce its rights under this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the Compass’ prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action, or proceeding or investigation in respect of which indemnification or contribution could be sought hereunder (whether or not Compass or any other Compass Party are an actual or potential party to such claim, action or proceeding which relates TBCC’s engagement hereunderor investigation), unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons each Compass Party from all liability arising out of such claim, action or proceeding and does not include or investigation. If for any reason the foregoing indemnification is determined to be unavailable to any Compass Party or insufficient to fully indemnify any such person, then the Client will contribute to the amount paid or payable by such person as a statement as to, or an admission of, fault, culpability or failure to act by or on behalf result of any Indemnified Person.
17.4. Nothing such claims in this Agreement shall be construed such proportion as is appropriate to designate TBCC or any other Indemnified Persons as a fiduciary to reflect both the Client.
17.5. TBCC shall not be liable to relative benefit and the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions.
17.6. This Clause shall survive any termination relative fault of the Client relationshipon the one hand, and the Compass Parties on the other hand, and any other relevant equitable considerations in connection with the matters as to which such claims relate: provided, however, that in no event shall the amount to be contributed by all Compass Parties in the aggregate exceed the amount of compensation actually received by Compass under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Client shall have no obligation under these indemnification provisions to indemnify any person, or provide contribution or reimbursement to any person, for any claim or expense under these indemnification provisions to the extent that it is either: (i) judicially determined (the determination having become final) by the applicable court of law to have arisen from that person’s gross negligence or willful misconduct (including bad faith and self-dealing); or (ii) settled prior to a judicial determination as to that person’s gross negligence or willful misconduct (including bad faith and self-dealing), after notice and a hearing, to be a claim or expense for which that person should not receive indemnity, contribution or reimbursement under the terms of the Agreement, as modified the Retention Order.
Appears in 1 contract
Samples: Consulting Agreement (Protea Biosciences Group, Inc.)
LIMITATION OF LIABILITY AND INDEMNITY. 17.111.1 The Carrier acknowledges and agrees that Transportr is a technology service provider who facilitates the individual commercial relationship between the Carrier and the Shipper through a digital Platform. TBCC or Transportr hereby expressly gives notice that it does not provide any Transportation Services itself. It is the Carrier who will perform such Transportation Services to the Shipper based on the Carrier’s Terms of its affiliates or partnersService and this Agreement. Transportr will have no liability whatsoever in relation to the Transportation Services provided by the Carrier to the Shipper and/or the Transportation Contract, officers, directors, employees or agents (each such entity or person, the “Indemnified Person") except as expressly provided otherwise in this Agreement.
11.2 Carrier shall not be liable for any expenses, lossesindemnify Transportr against all liabilities, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of actionfines, penaltiesexpenses, fines damages and taxes of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or losses incurred by the Client Transportr as a result of any third party, including Shippers, making a claim against Transportr for the Carrier or in connection its subcontractors failure to comply with the Client’s use Transportation Services and or the Transportation Contract.
11.3 Transportr has taken care to ensure that the content and usage of the Platform is accurate and provides safe access to the user, however, Transportr is not liable for any direct, indirect, special, incidental, consequential or punitive damage or for any loss of profits, loss of revenue or opportunities whatsoever, resulting from any claim suffered by Carrier through any downtime, malfunction, unlawful access, piracy, or theft of data, computer viruses or destructive code, or interruption or any other technical failure of the site, online services or databases. However, in case of failure to fulfil contractual obligations directly attributable to Transportr, then we shall only be liable to direct actual damage, which shall in no event exceed AED 10,000.
11.4 Carrier will be solely responsible for the Goods under its custody and control until the delivery of such Goods to the Shipper or the consignee, the Carrier’s liability for the Transportation Services, or for any matters pertaining loss or damage to the ClientGoods shall be determined in accordance with the Carrier’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court Terms of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person Service.
11.5 Neither Party shall not be liable under any circumstances for any indirect, special, incidental incidental, consequential or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, punitive damage or for any loss of profits, loss of revenue or opportunities whatsoever, resulting from any claim suffered by the other cause not reasonably within TBCC’s control, whether Party or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsany third party in relation to the provision of Transportation Services.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Carrier User Agreement
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC Except for charges, taxes or penalties for which the Trustee is liable and that cannot be charged against or deducted from the Fund in accordance with the Act, if the Trustee or the Agent is liable for:
(a) any tax, interest or penalty that may be imposed on the Trustee in respect of the Plan, or
(b) any other charges levied or imposed by any governmental authority on or related to the Plan as a result of the purchase, sale or retention of any investment including, without limitation thereof, nonqualified investments within the meaning of the Act, the Trustee or Agent shall be reimbursed or may pay any of its affiliates these taxes, interest, penalties or partnerscharges out of the Fund. The Trustee and the Agent will not be liable (including for greater certainty under any common law or equitable principles) for any cost incurred in the performance of their duties as set out herein or in the performance of their duties under the Act. Unless caused by the Trustee’s or the Agent’s bad faith, officers, directors, employees willful misconduct or agents (each such entity or personnegligence, the “Indemnified Person") shall Trustee and the Agent will not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind loss or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) damage suffered or incurred by the Client Plan, the Planholder or any beneficiary under the Plan, caused by or resulting from:
(a) Any loss or diminution of the Fund;
(b) The purchase, sale or retention of any investment;
(c) Payments out of the Plan that are made in accordance herewith; or
(d) Acting or declining to act on any instructions given to the Trustee orAgent by the Planholder or an individual purporting to be the Planholder. For greater certainty, in no event shall either the Trustee or its Agent have any liability to the Planholder (or to the spouse or common-law partner of the Planholder, or any beneficiary or legal personal representative of the Planholder) for any special, indirect, reliance, incidental, punitive, consequential, economic or commercial loss or damage of any kind whatsoever (whether foreseeable or not), suffered or incurred by the Planholder or any beneficiary under the arrangement (including without limitation, loss of profits or revenue, failure to realize expected savings or other economic losses and costs), howsoever arising, resulting or caused. Except as otherwise prohibited by law, the Planholder, his/her legal personal representatives and each beneficiary of this Plan will at all times indemnify and save harmless the Trustee and its Agent in respect of any taxes, interest and penalties which may be imposed on the Trustee in respect of the Plan or any losses incurred by the Plan as a result of the acquisition, retention or in connection with the Client’s use transfer of the Services, any investment or any matters pertaining to the Client’s Investment Account, or due to actions taken by TBCC according to its rights under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of payments or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any distributions out of the steps which TBCC is entitled to take Plan made in an Event of Default;
17.2.4. any third-party actions related to the receipt accordance with these terms and use by the Client of the Content conditions or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence the Trustee or willful misconduct.
17.3its Agent acting or declining to act upon any instructions given to it by the Planholder and any costs or expenses of the Trustee and the Agent related thereto (including legal fees). The Client agrees thatExcept as otherwise prohibited by law, without in the prior written consent event the Planholder breaches this Trust Agreement, the Planholder, his/ her legal personal representatives and each beneficiary of TBCC, it this Plan will not settle, compromise or consent or offer to settle, compromise or consent to indemnify and save harmless the entry Trustee and its Agent in respect of any judgment in any pending loss, damage, or threatened claimother expense (including legal fees) incurred by the Trustee or the Agent related to such breach. In all cases where the Trustee or the Agent are entitled to be indemnified, action or proceeding which relates TBCC’s engagement hereunder, unless they shall be entitled to cause such settlement, compromise or consent includes an unconditional release of TBCC, indemnity to be paid from the Fund. If the Fund is insufficient to indemnify the Trustee and the other Indemnified Persons from all liability arising out of such claimAgent fully, action or proceeding the Planholder agrees to indemnify and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to hold the Client.
17.5. TBCC shall not be liable to Trustee and the Client Agent harmless for any Losssuch costs, failureexpenses, hindrance charges or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionsliabilities.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Client Agreements
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC 15.1 The Investor agrees and acknowledges that the Investment Manager does not guarantee the success or performance of any investment recommendation or decision made by the Investment Manager under
15.2 Neither the Investment Manager, Sub-Advisor, nor any of its affiliates or partnerstheir respective directors, officers, directors, employees or agents shareholders (each such entity or person, the an “Indemnified Person"”) shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind loss or nature (including legal expenses and attorneys' fees) (whether known damage arising directly or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result indirectly out of or in connection with the Client’s use performance by the Investment Manager or Sub-Advisor, respectively, of its duties and obligations under this Agreement unless such loss or damage is due to the Gross Negligence, wilful default or fraud of the ServicesInvestment Manager, Sub-Advisor, or any matters pertaining the Indemnified Person. Without prejudice to the Client’s generality of Section 15.1 and subject to Section 15.5, neither the Investment AccountManager nor any Indemnified Person shall be liable:
(a) for any loss or damage arising out of or in connection with any act or omission of any person, firm or company through whom transactions in Investments are effected for the account of the Investor including any party having custody or possession of the Investment of the Investor from time to time, or due of any clearance or settlement system; or
(b) for any special, indirect or consequential damages, or for lost profits or loss of business, arising out of or in connection with any action taken, or omitted to actions taken be taken, in the performance or non- performance by TBCC according to the Investment Manager of its rights duties and obligations, or the exercise of its powers, under this Agreement.
15.3 Subject to the terms hereof, except Investor shall indemnify and keep indemnified the Investment Manager, acting for itself and as trustee for each Indemnified Person, from and against any and all liabilities, obligations, losses, damages, suits and expenses (each a “Loss”) which may be incurred by or asserted against the Investment Manager or any Indemnified Person in connection with the performance of any duty or obligation under this Agreement.
15.4 The Investor shall, at the request of the Investment Manager, advance to any Indemnified Person reasonable legal fees, costs and expenses incurred by an Indemnified Person in defending any proceedings brought against such Indemnified Person in connection with this Agreement. The Investment Manager undertakes to reimburse the Investor, as the case may be, for such fees, costs and expenses to the extent that such Losses are actual Losses and are it is determined that the Indemnified Person is not entitled to indemnification under this Agreement.
15.5 Nothing in this agreement shall:
(a) exclude or restrict any duty or liability in respect of the Investor which the Investment Manager may have under applicable law; or
(b) require the Investor to indemnify any Indemnified Person for any Loss that is held by a court of competent jurisdiction to be due to the Gross Negligence, wilful default or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality fraud of the foregoing, Indemnified Person shall not be liable under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct)person seeking to rely on this indemnity.
17.2. 15.6 The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only Investor acknowledges that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties purchasing Investments such as telecommunications failures or disruptionsprivate equity funds, nonsome types of hedge funds, closed-availability ended fund and derivatives, among other, may involve the holding of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions.
17.6. This Clause shall survive any termination of the Client relationship.those
Appears in 1 contract
Samples: Investment Management Agreement
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC (a) The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Client in relation to the provision of the Services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
(b) To the extent permitted by law, VIPP, its employees and any agents or contractors will not be liable for and the Client will indemnify and hold harmless against any claims, actions, expenses (including all reasonable legal expenses), loss or damages of a Third Party resulting from or arising out of the provision of the Services or the use of information provided by the Client.
(c) To the extent permitted by law, VIPP, its employees and any agents or contractors will not be liable for and the Client will indemnify and hold harmless against any claims, actions, expenses (including all reasonable legal expenses), loss or damages resulting from or arising out of:
(i) interference with VIPP’s Services for which it is not responsible;
(ii) any breach of the warranties provided by the Client under this Agreement;
(iii) damage or loss caused by unusual or non- recommended use of its affiliates Services;
(iv) loss caused by any factors beyond VIPP’s control;
(v) incorrect or partnersincomplete information provided by the Client;
(vi) failure by the Client to engage VIPP’s Services, officerswhether or not Reminders have been sent;
(vii) failure by the Client to pay Fees and the subsequent suspension of Services; and
(viii) failure by the Client to implement any recommendations that VIPP makes following the provision of the Services.
(d) VIPP will not be held liable for any inspections, directorsservices, employees repairs or agents other works required by the relevant laws and for which the Client or Agent has not engaged VIPP, including any works, inspections or repairs which occur after the provision of the Services, that are not performed by VIPP, and whether in accordance with or against the advice of VIPP.
(each such entity or person, the “Indemnified Person"e) shall VIPP will not be liable for any expensesspecial, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due consequential or to become due, accrued economic loss or not accrued, asserted damage or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) loss of profits suffered or incurred by the Client or any other person resulting from any act or omission by VIPP.
(f) VIPP may also be entitled to make a claim in respect of, indirect loss or consequential loss (such as, without limitation, loss of profits) incurred or sustained by the Client or any other person as a result of any omission or in connection with the Client’s use act of the Services, Client or any matters pertaining their Agent or as a result of a breach of this Agreement.
(g) The indemnity in clause 20(f) does not apply to the Client’s Investment Accountextent that the claims, actions, expenses, loss or due damages of a Third Party are determined to actions taken have resulted from the negligence of VIPP.
(h) Any advice, recommendation, information, assistance or service given by TBCC according VIPP in relation to its rights Goods or Services under this Agreement, except is given in good faith and is believed to be accurate, appropriate and reliable at the extent that such Losses are actual Losses and are determined by a court time it is given. It is provided without any warranty of competent jurisdiction accuracy, appropriateness or an arbitration panel in a final non-appealable judgment reliability. VIPP does not accept any liability or order to have resulted solely and directly from TBCC’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable under any circumstances responsibility for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be loss suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's ’s reliance on such advice, recommendation, information, assistance or service.
(i) The Parties acknowledge and agree that VIPP provides no warranties or guarantees in relation to any non-compliance Goods supplied by VIPP under the Services, with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use such Goods covered by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Websiterelevant manufacturer’s warranty.
17.2.5. any third-party actions related to (j) To the use extent permitted by law, VIPP’s limits its total liability under this Agreement (as determined by VIPP) to
(i) the supply of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Accountagain; or
17.2.11. (ii) the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement shall be construed to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC shall not be liable to the Client for any Loss, failure, hindrance or delay in performing its obligations under this Agreement where such Loss, failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party to the conflict and including cases where only part of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures payment of the mails or other communications systems, mechanical or electronic failure, failure cost of third parties to follow instructions, or for any other cause not reasonably within TBCC’s control, whether or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditionshaving the Services supplied again.
17.6. This Clause shall survive any termination of the Client relationship.
Appears in 1 contract
Samples: Terms and Conditions
LIMITATION OF LIABILITY AND INDEMNITY. 17.1. TBCC or any of its affiliates or partners, officers, directors, employees or agents (each such entity or person, the “Indemnified Person") shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines and taxes of any kind or nature (including legal expenses and attorneys' fees) (whether known or unknown, present or future, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third party claim, or otherwise) (“Loss”) suffered or incurred by the Client as a result of or in connection with the Client’s use of the Services, or any matters pertaining 13.1 Subject always to the Client’s Investment Accountprovisions of clauses 13.2 and 13.3, or due and notwithstanding anything to actions taken by TBCC according to its rights under the contrary anywhere else in this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely and directly from TBCCDataOrbis’s gross negligence or intentional misconduct. Without limiting the generality of the foregoing, Indemnified Person shall not be liable liability under any circumstances for any indirect, special, incidental or consequential damages, lost profit or other losses (regardless of whether such damages or losses were reasonably foreseeable or arise from TBCC’s gross negligence or intentional misconduct).
17.2. The Client shall to compensate, indemnify and hold harmless the Indemnified Person from all Losses which may be suffered or incurred by Indemnified Persons as a result of or in connection with:
17.2.1. the Client's any non-compliance with this Agreement;
17.2.2. TBCC entering into any Transaction under to this Agreement;
17.2.3. TBCC taking any of the steps which TBCC is entitled to take in an Event of Default;
17.2.4. any third-party actions related to the receipt and use by the Client of the Content or other third-party content, or other such information obtained on Investment Module or Website.
17.2.5. any third-party actions related to the use of the Investment Account;
17.2.6. any third-party claims against the Client arising out of or related to the Services and/or this Agreement.
17.2.7. Client’s misrepresentation, act or omission or alleged misrepresentation, act or omission;
17.2.8. Indemnified Persons following Client’s directions or instructions or failing to follow Client’s or their unlawful or unreasonable directions or instructions;
17.2.9. any activities or services of the Indemnified Persons in connection with the Investment Account as per Client’s instructions and/or in compliance with this Agreement;
17.2.10. any activities or services of the Third-Party Broker in connection with the Investment Account; or
17.2.11. the failure by any person not controlled by TBCC (for avoidance of any doubt, this shall include any of TBCC’s associates and affiliates or Third-Party Broker) to perform any obligations to the Client; Unless and to the extent only that such Losses are suffered or incurred as a result of TBCC's gross negligence or willful misconduct.
17.3. The Client agrees that, without the prior written consent of TBCC, it will not settle, compromise or consent or offer to settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding which relates TBCC’s engagement hereunder, unless such settlement, compromise or consent includes an unconditional release of TBCC, and the other Indemnified Persons from all liability arising out of such claim, action or proceeding and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Person.
17.4. Nothing in this Agreement howsoever arising shall be construed limited to designate TBCC or any other Indemnified Persons as a fiduciary to the Client.
17.5. TBCC direct damages only and in no event shall not DataOrbis be liable to the Client for any Lossconsequential, failureincidental, hindrance indirect or delay special damages including, without limitation, arising from loss of income, loss of goodwill or profits or business interruption, regardless of whether such liability is based on breach of this Agreement or not.
13.2 DataOrbis’s liability for any direct damages to the Client or any of its affiliates, officers, directors, shareholders, employees and/ or agents and their respective successors and assigns shall in performing respect of each claim be limited to an amount equal to the greater of the sum of the fees paid by the Client to DataOrbis during the month in which DataOrbis’s aforesaid liability arose and the proceeds of such insurance policies as DataOrbis may have in place, if any, in relation to suchliability.
13.3 Each Party (“the Indemnifying Party”) shall protect, defend, indemnify and hold the other Party or their respective affiliates and their respective officers, directors, shareholders, employees and agents, and their respective successors and assigns (collectively referred to as the “Indemnified Parties”) harmless from any and all claims, actions, causes of action, liabilities, losses, costs, damages or expenses, including reasonable attorney’s fees (collectively “Losses”), which directly or indirectly arise out of or in relation to the implementation of this Agreement which Losses are caused by gross negligence or wilful misconduct of the Indemnifying Party.
13.4 Without in any way derogating from the provisions of clauses
13.1 to 13.3 (inclusive), DataOrbis shall have no liability for any failure to meet any of its obligations under in terms of this Agreement where such Loss, failure, hindrance or delay arises which result directly or indirectly from circumstances beyond its reasonable control. Such force majeure events the failure or interruption of software or services provided by third parties, nor shall include without limitation declared or imminent war, acts of terrorism, revolt, civil unrest, catastrophes of nature, other causes commonly known as “acts of God”, statutory provisions, measures taken by state authorities, strikes, lock-outs, boycotts, or blockades, notwithstanding that TBCC is a party DataOrbis have any liablity to the conflict and including cases where only part Client or any third party for any loss or harm suffered as a result of TBCC's functions are affected by such events, any technical difficulties such as telecommunications failures or disruptions, non-availability of Website or Investment Module in the Mobile Bank (e.g. due to maintenance downtime), cyber-attacks or cyber incidents, exchange or market rulings, suspension of trading failures of the mails events or circumstances described in clauses 3.5.1 to 3.5.13.
13.5 The Client alone is responsible for virus-checking any programs, macros, data files or other communications systems, mechanical material accessed through the Internet or electronic failure, failure of third parties to follow instructions, or received by it from DataOrbis. DataOrbis shall have no liability for any other cause not reasonably within TBCC’s control, whether viruses uploaded to the software or not such cause was reasonably foreseeable. In addition, TBCC shall not be liable for Losses caused by general market conditions.
17.6. This Clause shall survive to any termination information systems of the Client relationshipby third parties or by the Client’s employees or agents.
13.6 The Client agrees that it is in a better position than DataOrbis to foresee and estimate any loss it may suffer in connection with this Agreement or any DataOrbis Services and that DataOrbis’s fees and charges have been agreed to after taking full account of the limitations and exclusions contained in this clause.
13.7 The obligations set forth in this clause 13 shall survive the expiration, cancellation or other termination of this Agreement.
Appears in 1 contract
Samples: Services Agreements
