Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. (b) Bank shall be liable to the Trust for its direct damages to the extent they result from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought. (c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to: (i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement; (ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust; (iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct; (iv) the breach of any representation or warranty of the Trust hereunder; (v) reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Person; (vi) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers; (vii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement; (viii) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses; (ix) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and (x) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) or (x) of this subsection (c). (d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice. (e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
Appears in 2 contracts
Samples: Agency Services Agreement (Proshares Trust), Agency Services Agreement (Proshares Trust)
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to the Trust for its direct damages damages, to the extent they result from Bank’s 's negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach reliance by Bank on telephone or other electronic Instructions of any representation or warranty person acting on behalf of the Trust hereunderor an investor for which telephone or other electronic services have been authorized, except when Bank fails to use reasonable care in complying with applicable procedures in relying on such Instructions;
(vvi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by unaffiliated data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectusesmisleading;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) or (x) of this subsection (c).
(d) In the event of a mechanical breakdown or failure of communication or power supplies beyond its control, Bank shall take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond Bank's control. Bank will make every reasonable effort to restore any lost or damaged data and correct any errors resulting from such a breakdown at the expense of Bank. Bank agrees that it shall, at all times, have reasonable contingency plans with appropriate parties, making reasonable provision for emergency use of electrical data processing equipment to the extent appropriate equipment is available. Bank, in its good faith, believes that such plans and provisions are appropriate for the complexity and scope of its activities. Upon the Trust’s request, Bank will make a presentation discussing its disaster recovery plan. Representatives of the Trust shall be entitled to inspect Bank's regular operating premises where it provides services under this Agreement at any time during regular business hours of Bank, upon reasonable notice to Bank. Inspection of any contingency sites shall be at Bank’s discretion. Any such review shall be subject to confidentiality of the information and locations disclosed to Trust representatives. Notwithstanding the above, Bank reserves the right to reprocess and correct administrative errors at its own expense.
(e) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank Bank, at its own cost, may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practiceClaim.
(ef) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
Appears in 1 contract
Samples: Agency Services Agreement (Ziegler Exchange Traded Trust)
Limitations of Liability and Indemnification. (a) Bank J.X. Xxxxxx shall use reasonable care in performing its duties under this Agreement. J.X. Xxxxxx shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank J.X. Xxxxxx shall be liable to the Trust for its direct damages damages, excluding attorneys’ fees, to the extent they result from Bank’s J.X. Xxxxxx'x negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank J.X. Xxxxxx be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank J.X. Xxxxxx shall not be responsible for, and the Trust shall indemnify and hold BankJ.X. Xxxxxx, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by BankJ.X. Xxxxxx, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank J.X. Xxxxxx or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank J.X. Xxxxxx or its officers, employees or agents of information, records, or documents which are received by Bank J.X. Xxxxxx or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by BankJ.X. Xxxxxx on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by J.X. Xxxxxx, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Person;Person of the Trust; ETF Agency Services Agreement – December 2010 version
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank J.X. Xxxxxx by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable lawsApplicable Laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s ProspectusesProspectus;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank J.X. Xxxxxx or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank J.X. Xxxxxx shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank J.X. Xxxxxx or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless BankJ.X. Xxxxxx, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank J.X. Xxxxxx or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.J.
Appears in 1 contract
Samples: Agency Services Agreement (Exchange Traded Concepts Trust)
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to the Trust for its direct damages damages, excluding attorneys’ fees, to the extent they result from Bank’s 's negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by Bank on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) and (b) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practiceClaim.
(e) THIS AGREEMENT HAS BEEN ENTERED INTO BY THE TRUST AND WAS EXECUTED AND DELIVERED BY AN OFFICER THEREOF, WHICH OFFICER WAS ACTING SOLELY IN HIS CAPACITY AS AN OFFICER OF THE TRUST AND NOT IN HIS INDIVIDUAL CAPACITY. THE OBLIGATIONS OF THIS AGREEMENT ARE BINDING NEITHER ON SUCH OFFICER NOR ON ANY SHAREHOLDER OF THE SERIES OR CLASSES OF THE TRUST INDIVIDUALLY, BUT ARE BINDING ONLY UPON THE ASSETS AND PROPERTY OF THE TRUST OR BELONGING OR ATTRIBUTABLE TO AN SERIES OR CLASS THEREOF. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ASSETS AND LIABILITIES OF EACH SERIES OR CLASS OF THE TRUST ARE SEGREGATED PURSUANT TO THE DELAWARE STATUTORY TRUST ACT AND THE 3RD AMENDED AND RESTATED TRUST AGREEMENT OF THE TRUST AND THAT EACH SERIES OR CLASS IS NOT RESPONSIBLE FOR THE OBLIGATIONS OF EACH OTHER SERIES OR CLASS. ANY PARTY EXTENDING CREDIT TO, CONTRACTING WITH OR HAVING ANY CLAIM AGAINST ANY SERIES OR CLASS OF THE TRUST MAY LOOK ONLY TO THE ASSETS OF SUCH SERIES TO SATISFY OR ENFORCE ANY DEBT WITH RESPECT TO THAT SERIES. IN ACCORDANCE WITH THE FORGOING, UPON REQUEST OF THE BANK, THE TRUST SHALL PROMPTLY INFORM BANK OF THE PROPER ATTRIBUTION AMONGST THE SERIES OF ANY OUTSTANDING OBLIGATIONS DUE HEREUNDER. BANK MAY RELY ON SUCH ALLOCATION STIPULATED BY THE TRUST WITHOUT FURTHER INQUIRY OR LIABILITY.
(f) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
Appears in 1 contract
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement.
(b) Bank shall be liable to the Trust for its direct damages to the extent they result from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents (“Bank Indemnitees”) harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by Bank on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized so long as such taping or form of recording is in compliance with applicable laws;
(vi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF NETS Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practiceunreasonably withheld.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
Appears in 1 contract
Limitations of Liability and Indemnification. Neither AACC nor its officers, directors and/or employees shall have any responsibility for compliance by Customer with any law or regulation governing Customer’s conduct. Neither AACC nor its officers, directors, or employees shall be under any liability whatsoever for any loss or damage sustained by Customer as a direct or indirect result of any services provided by AACC hereunder or for any loss or damage resulting, directly or indirectly, from: (a) Bank shall use reasonable care any failure or delay or default on the part of Customer or any third party, including any custodian or Exchange (including any clearinghouse), in providing accurate information or performing its duties under this Agreement.
functions; (b) Bank shall be liable to any event or circumstance beyond the Trust for its direct damages to the extent they result from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (reasonable control of AACC including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
, (i) any failure or defective performance of any communication, settlement, computer or accounting system or equipment; or (ii) performance, non- performance, delays in the transmission or execution of any order due to suspension or termination of trading, the breakdown or failure of the System (as defined below) or of any other transmission system, electronic trading system or communication facilities, or (iii) any governmental, judicial, administrative, Exchange or regulatory or self-regulatory organization order, restriction or ruling; (c) strikes or similar labor action; or (d) any reliance placed by Customer on any market or other information supplied to Customer by AACC, it being understood that any such information may be unverified and all actions AACC makes no representation or warranty as to the accuracy or reasonableness of Bank such information; provided, however, that AACC is not excluded from liability for any loss suffered by Customer to the extent such loss is directly caused by the gross negligence, intentional misconduct or fraud of AACC. In no event will AACC or its officers, directors or employees be liable hereunder to Customer for consequential, incidental or agents required special damages, including damages for loss of profit or loss of trading opportunity. In the event that AACC is a party, directly or indirectly, to be taken pursuant to this Agreement;
any claim, dispute or loss in connection with (i) transactions effected in the Account; (ii) Customer’s obligations or liabilities arising from the reasonable reliance on or use by Bank or its officersAccount, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Person;
(vi) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(vii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viii) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses;
(ix) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(x) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) or (x) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.,
Appears in 1 contract
Samples: Futures Account Agreement
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to the Trust for its direct damages damages, excluding attorneys fees, to the extent they result from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by Bank on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practiceClaim.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
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Limitations of Liability and Indemnification. (a) Bank J.X. Xxxxxx shall use exercise reasonable care in performing its duties under this Agreement. J.X. Xxxxxx shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care unless the same results from an act of negligence, fraud or willful misconduct on the part of J.X. Xxxxxx or any J.X. Xxxxxx Indemnitee.
(b) Bank J.X. Xxxxxx shall be liable to the Trust for its direct damages damages, excluding attorneys’ fees, to the extent they result from Bank’s J.X. Xxxxxx'x negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank J.X. Xxxxxx be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank J.X. Xxxxxx shall not be responsible for, and the Trust shall indemnify and hold BankJ.X. Xxxxxx, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by BankJ.X. Xxxxxx, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank J.X. Xxxxxx or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank J.X. Xxxxxx or its officers, employees or agents of information, records, or documents which are received by Bank J.X. Xxxxxx or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by BankJ.X. Xxxxxx on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by J.X. Xxxxxx, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized PersonPerson of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank J.X. Xxxxxx by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement Registration Statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable lawsApplicable Laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s ProspectusesProspectus;
(ixx) the actions taken by the Trust, the Distributor Order Taker or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank J.X. Xxxxxx or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the DistributorOrder Taker, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections subsection (a) above, Bank J.X. Xxxxxx shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank J.X. Xxxxxx or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless BankJ.X. Xxxxxx, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank J.X. Xxxxxx or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.J.
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Limitations of Liability and Indemnification. (a) Bank X.X. Xxxxxx shall use reasonable care in performing its duties under this Agreement. In the absence of negligence, fraud or willful misconduct, X.X. Xxxxxx shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank X.X. Xxxxxx shall be liable to the Trust for its direct damages damages, excluding attorneys’ fees, to the extent they result from Bank’s X.X. Xxxxxx’x negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank X.X. Xxxxxx be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank X.X. Xxxxxx shall not be responsible for, and and, in the absence of negligence, fraud or willful misconduct, the Trust shall indemnify and hold BankX.X. Xxxxxx, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by BankX.X. Xxxxxx, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank X.X. Xxxxxx or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank X.X. Xxxxxx or its officers, employees or agents of information, records, or documents which are received by Bank X.X. Xxxxxx or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by BankX.X. Xxxxxx on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by X.X. Xxxxxx, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized PersonPerson of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank X.X. Xxxxxx by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable lawsApplicable Laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s ProspectusesProspectus;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank X.X. Xxxxxx or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) above, Bank X.X. Xxxxxx shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank X.X. Xxxxxx or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless BankX.X. Xxxxxx, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank X.X. Xxxxxx or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
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Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to the Trust for its direct damages damages, excluding attorneys’ fees, to the extent they result from Bank’s 's negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.. ETF Agency Services Agreement – March 2010 version
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by Bank on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;; ETF Agency Services Agreement – March 2010 version
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsor. Notwithstanding subsections (a) and (b) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practiceClaim.
(e) THIS AGREEMENT HAS BEEN ENTERED INTO BY THE TRUST AND WAS EXECUTED AND DELIVERED BY AN OFFICER THEREOF, WHICH OFFICER WAS ACTING SOLELY IN HIS CAPACITY AS AN OFFICER OF THE TRUST AND NOT IN HIS INDIVIDUAL CAPACITY. THE OBLIGATIONS OF THIS AGREEMENT ARE BINDING NEITHER ON SUCH OFFICER NOR ON ANY SHAREHOLDER OF THE SERIES OR CLASSES OF THE TRUST INDIVIDUALLY, BUT ARE BINDING ONLY UPON THE ASSETS AND PROPERTY OF THE TRUST OR BELONGING OR ATTRIBUTABLE TO AN SERIES OR CLASS THEREOF. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ASSETS AND LIABILITIES OF EACH SERIES OR CLASS OF THE TRUST ARE SEGREGATED PURSUANT TO THE DELAWARE STATUTORY TRUST ACT AND THE 3RD AMENDED AND RESTATED TRUST AGREEMENT OF THE TRUST AND THAT EACH SERIES OR CLASS IS NOT RESPONSIBLE FOR THE OBLIGATIONS OF EACH OTHER SERIES OR CLASS. ANY PARTY EXTENDING CREDIT TO, CONTRACTING WITH OR HAVING ANY CLAIM AGAINST ANY SERIES OR CLASS OF THE TRUST MAY LOOK ONLY TO THE ASSETS OF SUCH SERIES TO SATISFY OR ENFORCE ANY DEBT WITH RESPECT TO THAT SERIES. IN ACCORDANCE WITH THE FORGOING, UPON REQUEST OF THE BANK, THE TRUST SHALL PROMPTLY INFORM BANK OF THE PROPER ATTRIBUTION AMONGST THE SERIES OF ANY OUTSTANDING OBLIGATIONS DUE HEREUNDER. BANK MAY RELY ON SUCH ALLOCATION STIPULATED BY THE TRUST WITHOUT FURTHER INQUIRY OR LIABILITY. ETF Agency Services Agreement – March 2010 version
(f) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
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Limitations of Liability and Indemnification. (a) Bank X.X. Xxxxxx shall use exercise reasonable care in performing its duties under this Agreement. X.X. Xxxxxx shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care unless the same results from an act of negligence, fraud or willful misconduct on the part of X.X. Xxxxxx or any X.X. Xxxxxx Indemnitee.
(b) Bank X.X. Xxxxxx shall be liable to the Trust for its direct damages damages, excluding attorneys' fees, to the extent they result from Bank’s X.X. Xxxxxx'x negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank X.X. Xxxxxx be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank X.X. Xxxxxx shall not be responsible for, and the Trust shall indemnify and hold BankX.X. Xxxxxx, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by BankX.X. Xxxxxx, any of its officers, employees or agents, or the Trust’s 's agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank X.X. Xxxxxx or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank X.X. Xxxxxx or its officers, employees or agents of information, records, or documents which are received by Bank X.X. Xxxxxx or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s 's refusal or failure to comply with the terms of this Agreement or the Trust’s 's lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust, its agents or any investor or reliance by BankX.X. Xxxxxx on telephone or other electronic Instructions of any person acting on behalf of the Trust or an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by X.X. Xxxxxx, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized PersonPerson of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank X.X. Xxxxxx by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement 's Registration Statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable lawsApplicable Laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses's Prospectus;
(ixx) the actions taken by the Trust, the Distributor Order Taker or by the Trust’s 's investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank X.X. Xxxxxx or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the DistributorOrder Taker, or by the Trust’s 's investment advisers, administrator or sponsor. Notwithstanding subsections subsection (a) above, Bank X.X. Xxxxxx shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank X.X. Xxxxxx or, at the Trust’s 's option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless BankX.X. Xxxxxx, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank X.X. Xxxxxx or any of them as a result of or relating to such claim, demand or cause of action (“"Third Party Claim”"). Bank X.X. Xxxxxx shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate X.X. Xxxxxx mayparticipate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice.Claim
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
Appears in 1 contract
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to each of the Trust and the Sponsor for its direct damages damages, excluding legal fees, to the extent they result from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, Damages incurred by Bank, Bank and any of its officers, employees or agents, or the Trust’s agents in the performance of its/its or their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vi) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by datathe Valuation Agent, corporate action the Warehouse Administrator or pricing services, depositories or clearing systems, or securities brokers or dealersany other service provider to the Trust;
(vii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state state, (1A) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2B) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viii) any failure of the Trust’s registration statement Registration Statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact in the Trust’s Prospectus or omission of a material fact necessary to make any statement therein not misleading in the Trust’s ProspectusesProspectus not misleading;
(ix) the any actions taken by the Trust, the Distributor or by the Trust’s investment advisers in compliance Trust that do not comply with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(x) all actionsany action, omissionsomission, or errors caused error by a third parties party to whom Bank Bank, at the direction of the Trust or the Trust have Sponsor, has assigned any rights and/or or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsorAgreement. Notwithstanding subsections subsection (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) or (xix) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all LiabilitiesDamages, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (a “Third Party Claim”). Bank shall notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without the prior written consent of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practiceClaim.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
(f) It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered on behalf of the Trust by the Sponsor, not individually or personally, but solely as Sponsor of the Trust in the exercise of the powers and authority conferred and vested in it, (ii) the representations, covenants, undertakings and agreements herein made on the part of the Trust are made and intended not as personal representations, undertakings and agreements by the Sponsor but are made and intended for the purpose of binding only the Trust, (iii) nothing herein contained shall be construed as creating any liability on the Sponsor, individually or personally, to perform any covenant of the Trust either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto and (iv) under no circumstances shall the Sponsor be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, duty, representation, warranty or covenant made or undertaken by the Trust under this Agreement or any other related document.
Appears in 1 contract
Samples: Agency Services Agreement (J.P. Morgan Physical Copper Trust)
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care in performing its duties under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to the Sponsor and Trust for its their direct damages to the extent they result from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) of any form, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust Sponsor shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the TrustSponsor, and which have been prepared or maintained by the Trust or Sponsoror any third party on behalf of the Trust;
(iii) the TrustSponsor’s refusal or failure to comply with the terms of this Agreement or the TrustSponsort’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconduct;
(iv) the breach of any representation or warranty of the Trust hereunderSponsorhereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Sponsor, its agents or any investor or reliance by Bank on telephone or other electronic Instructions of any person acting on behalf of the Sponsoror an investor for which telephone or other electronic services have been authorized;
(vi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior Sponsorprior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s Prospectuses;
(ixx) the actions taken by the Trust, the Distributor Trust or by the Trust’s investment advisers Sponsor in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the Distributor, or by the Trust’s investment advisers, administrator or sponsorSponsor. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall Sponsorshall defend Bank or, at the TrustSponsor’s option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court includingcourt and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“Third Party Claim”). Bank shall notify the Trust in Sponsorin writing of any such Third Party Claim, and give the Trust all Sponsorall reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement Claim.
(e) The debts, liabilities, obligations, expenses, costs, charges, indemnities and reserves incurred, contracted for, attributable to or otherwise existing with respect to a particular Series shall be enforceable against the assets of such Third Party Claim without Series only, and not against the prior written consent assets of the Trust generally or of any other Series and, unless otherwise provided by the Sponsor, none of the debts, liabilities, obligations, expenses, costs, charges, indemnities and reserves incurred, contracted for, attributable to or otherwise existing with respect to the Trust generally or any other Series shall be enforceable against the assets of such Series. Any general liabilities, expenses, costs, charges, indemnities or reserves of the Trust which are not readily identifiable as being held with respect to any particular Series shall be allocated and charged by the Sponsor to and among any one or more of the Series in such manner and on such basis as the Sponsor in its sole discretion deems fair and equitable. Pursuant to the Delaware Statutory Trust Act and the Amended and Restated Trust Agreement of the Trust, any party extending credit to, contracting with or having any claim against any Series of the Trust may look only to the assets of such Series to satisfy or enforce any debt with respect to that Series.
(f) This Agreement has been entered into by the Trust and was executed and delivered by an officer of its Sponsor, on behalf of the Trust, which consent shall officer was acting solely in his capacity as an officer of the Sponsor and not be withheld in his individual capacity and which Sponsor was acting solely in its capacity as sponsor of the Trust and not in its individual capacity. The obligations of this Agreement are not binding on such officer, the Sponsor or any shareholder of the series of the Trust individually. The obligations of this Agreement are binding only upon the assets and property of the Trust or belonging or attributable to a manner contrary to reasonable business practiceSeries thereof.
(eg) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefor.
Appears in 1 contract
Samples: Agency Services Agreement (ETFS Collateralized Commodities Trust)
Limitations of Liability and Indemnification. (a) Bank shall use reasonable care care, prudence, and diligence in performing all of its duties and carrying out all of its obligations under this Agreement. Bank shall not be in violation of this Agreement with respect to any matter as to which it has satisfied its duty of reasonable care.
(b) Bank shall be liable to the Trust for its direct damages all losses, damages, liabilities or expenses (including reasonable counsel fees and expenses) suffered or incurred by the Trust or Fund to the extent they result that such loss results from Bank’s negligence, bad faith or willful misconduct in performing its duties as set out in this Agreementthe failure of Bank to exercise such reasonable care and diligence. Nevertheless, under no circumstances shall Bank be liable for any indirect, special or consequential damages (including, without limitation, lost profits) Upon the occurrence of any formevent which causes or may cause any loss, whether damage, or not foreseeable and regardless expense to the Fund or the Trust, Bank shall promptly notify the Fund of the type occurrence of action in which such a claim may be broughtevent, and the Bank shall use all commercially reasonable efforts and take all reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to the Fund or the Trust.
(c) Without limiting subsections (a) and (b) above, Bank shall not be responsible for, and the Trust shall indemnify and hold Bank, its officers, employees and agents harmless from and against, any and all Liabilities, incurred by Bank, any of its officers, employees or agents, or the Trust’s 's agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Bank or its officers, employees or agents required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Bank or its officers, employees or agents of information, records, or documents which are received by Bank or its officers, employees or agents and furnished to it or them by or on behalf of the Trust, and which have been prepared or maintained by the Trust or any third party on behalf of the Trust;
(iii) the Trust’s 's refusal or failure to comply with the terms of this Agreement or the Trust’s lack of good faith, or its actions, or lack thereof, involving negligence or willful misconductAgreement;
(iv) the breach of any representation or warranty of the Trust hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with the Trust or its agents, or reliance by Bank on telephone or other electronic Proper Instructions of any Authorized Person acting on behalf of the Trust for which telephone or other electronic services have been authorized;
(vi) the reliance by Bank, its officers, employees or agents on any share certificates which are reasonably believed to bear the proper manual or facsimile signature of an Authorized Personofficer or agent of the Trust;
(vivii) any delays, inaccuracies, errors in or omissions from information or data provided to Bank by data, corporate action or pricing services, depositories or clearing systems, or securities brokers or dealers;
(viiviii) the offer or sale of ETF Shares shares by the Trust in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such ETF Shares shares in such state (1) resulting from activities, actions, or omissions by the Trust or its other service providers and agents, or (2) existing or arising out of activities, actions or omissions by or on behalf of the Trust prior to the effective date of this Agreement;
(viiiix) any failure of the Trust’s 's registration statement to comply with the 1933 Act and the 1940 Act (including the rules and regulations thereunder) and any other applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading in the Trust’s 's Prospectuses;
(ixx) the actions taken by the Trust, the Distributor or by the Trust’s 's investment advisers in compliance with applicable securities, tax, commodities and other laws, rules and regulations, or the failure to so comply; and
(xxi) all actions, omissions, or errors caused by third parties to whom Bank or the Trust have has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Trust or the DistributorAgreement; provided, however, that such indemnity shall not apply to any loss, damage, or expense occasioned by or resulting from the Trust’s investment advisersnegligence, administrator misfeasance, or sponsormisconduct of the Bank, its nominees or agents. Bank shall submit written evidence to the Fund or Trust with respect to any cost or expense for which they are seeking indemnification in such form and detail as the Fund may reasonably request. Notwithstanding subsections (a) above, Bank shall have no duty or obligation of reasonable care with respect to any of the activities described in clauses (vii), (viii), (ix) (x) or (xxi) of this subsection (c).
(d) The Trust shall defend Bank or, at the Trust’s 's option, settle any claim, demand or cause of action, whether groundless or otherwise, that the ETF Shares or any of the services provided herein for the Trust infringes on, violates or misappropriates any patent, copyright, trademark, trade secret or any other proprietary right, and shall indemnify and hold harmless Bank, its officers, employees and agents against all Liabilities, including court and settlement costs incurred by Bank or any of them as a result of or relating to such claim, demand or cause of action (“"Third Party Claim”"), except where such claim, demand, or cause of action results from the systems or methods used by Bank in its capacity as a transfer agent, index receipt agent, or custodian for the ETF shares. Bank shall promptly notify the Trust in writing of any such Third Party Claim, and give the Trust all reasonably necessary information and assistance to defend or settle such Third Party Claim. Bank at its expense may participate in the defense or settlement of the Third Party Claim but shall not enter into any settlement with respect to such Third Party Claim without at the prior written consent discretion of the Trust, which consent shall not be withheld in a manner contrary to reasonable business practice.
(e) This Section 8 shall survive the termination of this Agreement, regardless of the party that terminated the Agreement or the reason therefortherefore.
Appears in 1 contract
Samples: Agency Services Agreement (Fidelity Commonwealth Trust)
