Common use of Performance and Liability Clause in Contracts

Performance and Liability. a) The Sub-Adviser shall act with the care, skill, prudence and diligence of a professional investment adviser. b) Each party shall at its own expense indemnify, defend and hold harmless the other party and its affiliates and their respective directors, officers, employees, agents, representatives or advisors, successors and assigns, and all other persons and entities acting on behalf of or under the control of such party, harmless from, for and against any and all claims, demands, suits, causes of action, debts or liabilities, losses, judgment, damages, costs (including all reasonable attorney’s fees), expenses, fines and penalties (collectively, the “Claims”) to the extent arising out of or as a result of fraud, bad faith, gross negligence or willful misconduct of such party, its employees or agents. The indemnified party hereby agrees to advise the indemnifying party of any Claim promptly after receipt of the notice thereof; provided, however, that the indemnified party’s right to indemnification hereunder shall not be limited by its failure to promptly advise the indemnifying party of any such Claim, except to the extent that the indemnifying party is prejudiced by such failure. The indemnifying party shall have the right, at its option, to assume the control of the Claim in respect of which indemnity may be sought hereunder, including the employment of counsel with respect thereto, in which event, except as provided below, the indemnifying party shall not be liable for the fees and expenses of any other counsel retained by any indemnified party in connection with such Claim. In any such Claim of which indemnifying party shall have so assumed, any indemnified party shall have the right to participate and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party (and not the indemnifying party) unless (i) each party shall have mutually agreed in writing to the retention of such counsel, or (ii) the named parties to any such litigation or proceeding (including any impleaded parties) include both parties and representation of both parties by the same counsel would, in the opinion of counsel to the indemnified party, be inappropriate due to actual legal conflict of interest. The indemnifying party agrees to keep the indemnified party informed of the status of any Claim hereunder. The indemnifying party will not, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld), settle any Claim unless such settlement includes an express, complete and unconditional release of the indemnified party with respect to all Claims; such release to be set forth in an instrument signed by all parties to such settlement. c) Except as otherwise expressly provided in this Section 10, the Sub-Adviser shall in no event have any liability to the Adviser under or as a result of this Agreement or the performance of the Services, except to the extent such liability results from the gross negligence or willful misconduct of Sub-Adviser or breach of this Agreement by Sub-Adviser. Without limiting the generality of the foregoing, the Sub-Adviser will not be liable to the Adviser for: (i) any loss of profits, loss of revenue, loss of reputation or goodwill; (ii) any indirect, special or consequential loss; or (iii) any exemplary or punitive damages, whether arising in contract, tort, negligence, misrepresentation, for breach of duty (including without limitation statutory duty) or otherwise. Nothing in this Section 10(c) shall limit the liability of Adviser to the Sub-Adviser for the payment of fees under this Agreement.

Performance and Liability. (a) The Sub-Adviser Advisor shall act with the care, skill, prudence and diligence of a professional investment adviser. (b) Each party shall at its own expense indemnify, defend and hold harmless the other party and its affiliates and their respective directors, officers, employees, agents, representatives or advisors, successors and assigns, and all other persons and entities acting on behalf of or under the control of such party, harmless from, for and against any and all claims, demands, suits, causes of action, debts or liabilities, losses, judgment, damages, costs (including all reasonable attorney’s fees), expenses, fines and penalties (collectively, the “Claims”) to the extent arising out of or as a result of fraud, bad faith, gross negligence or willful misconduct of such party, its employees or agents. The indemnified party hereby agrees to advise the indemnifying party of any Claim promptly after receipt of the notice thereof; provided, however, that the indemnified party’s right to indemnification hereunder shall not be limited by its failure to promptly advise the indemnifying party of any such Claim, except to the extent that the indemnifying party is prejudiced by such failure. The indemnifying party shall have the right, at its option, to assume the control of the Claim in respect of which indemnity may be sought hereunder, including the employment of counsel with respect thereto, in which event, except as provided below, the indemnifying party shall not be liable for the fees and expenses of any other counsel retained by any indemnified party in connection with such Claim. In any such Claim of which indemnifying party shall have so assumed, any indemnified party shall have the right to participate and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party (and not the indemnifying party) unless (i) each party shall have mutually agreed in writing to the retention of such counsel, or (ii) the named parties to any such litigation or proceeding (including any impleaded parties) include both parties and representation of both parties by the same counsel would, in the opinion of counsel to the indemnified party, be inappropriate due to actual legal conflict of interest. The indemnifying party agrees to keep the indemnified party informed of the status of any Claim hereunder. The indemnifying party will not, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld), settle any Claim unless such settlement includes an express, complete and unconditional release of the indemnified party with respect to all Claims; such release to be set forth in an instrument signed by all parties to such settlement. (c) Except as otherwise expressly provided in this Section 10, the Sub-Adviser Advisor shall in no event have any liability to the Adviser Advisor under or as a result of this Agreement or the performance of the Services, except to the extent such liability results from the gross negligence or willful misconduct of Sub-Adviser Advisor or breach of this Agreement by Sub-AdviserAdvisor. Without limiting the generality of the foregoing, the Sub-Adviser Advisor will not be liable to the Adviser for: (i) any loss of profits, loss of revenue, loss of reputation or goodwill; (ii) any indirect, special or consequential loss; or (iii) any exemplary or punitive damages, whether arising in contract, tort, negligence, misrepresentation, for breach of duty (including without limitation statutory duty) or otherwise. Nothing in this Section 10(c) shall limit the liability of Adviser Advisor to the Sub-Adviser Advisor for the payment of fees under this Agreement.

Performance and Liability. a) The Sub-Adviser shall act with Bank will perform its obligations under the care, skill, prudence Agreement using such level of skill and diligence care as would be considered commercially reasonable by reference to the standards and practices of a professional investment adviserthe banking industry. b) Each party Neither Party shall at its own expense indemnifybe liable for any: i) consequential, defend and hold harmless incidental or indirect Loss including, without limitation, fines, penalties or punitive damages; or ii) any direct or indirect loss of (i) profit (actual or anticipated), (ii) goodwill or (iii) business opportunity, whether or not foreseeable, even if one Party advised the other party and its affiliates and their respective directors, officers, employees, agents, representatives or advisors, successors and assigns, and all other persons and entities acting on behalf of or under the control possibility of such party, harmless from, for and against any and all claims, demands, suits, causes of action, debts loss or liabilities, losses, judgment, damages, costs (including all reasonable attorney’s fees), expenses, fines and penalties (collectively, the “Claims”damage. c) to the extent arising out of or as a result of fraud, bad faith, gross negligence or willful misconduct of such party, its employees or agents. The indemnified party hereby agrees to advise the indemnifying party of any Claim promptly after receipt of the notice thereof; provided, however, that the indemnified party’s right to indemnification hereunder shall not be limited by its failure to promptly advise the indemnifying party of any such Claim, except to the extent that the indemnifying party is prejudiced by such failure. The indemnifying party shall have the right, at its option, to assume the control of the Claim in respect of which indemnity may be sought hereunder, including the employment of counsel with respect thereto, in which event, except as provided below, the indemnifying party Parties shall not be liable for any Loss caused by a Force Majeure Event. If either Party is prevented or delayed in the fees and expenses performance of any of its obligations under the Agreement by a Force Majeure Event, such Party shall as soon as reasonably practicable notify the other counsel retained by of the existence of the Force Majeure Event. The Bank’s duty or the duty of any indemnified party in connection with such Claim. In member of the HSBC Group to act upon any such Claim of which indemnifying party shall have so assumedInstruction or Communication, or perform any indemnified party shall have the right to participate and to retain its own counselobligation, but the fees and expenses of such counsel shall be at the expense of such indemnified party (and not the indemnifying party) unless (i) each party shall have mutually agreed in writing suspended to the retention extent that and for as long as the Bank and/or any member of such counselthe HSBC Group is prevented or restricted from doing so by a Force Majeure Event. d) In providing the Services, or (ii) the named parties to any such litigation or proceeding (including any impleaded parties) include both parties Bank may use certain Infrastructure Providers and representation of both parties by the same counsel would, in the opinion of counsel Services are therefore subject to the indemnified party, be inappropriate due to actual legal conflict rules and regulations of interestthose Infrastructure Providers as well as the guidelines and procedures of relevant regulatory or industry bodies. The indemnifying party agrees to keep Neither the indemnified party informed Bank nor any other member of the status of HSBC Group shall be liable for any Claim hereunder. The indemnifying party will not, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld), settle any Claim unless such settlement includes an express, complete and unconditional release of the indemnified party with respect to all Claims; such release to be set forth in an instrument signed by all parties to such settlement. c) Except as otherwise expressly provided in this Section 10, the Sub-Adviser shall in no event have any liability to the Adviser under or Loss suffered as a result of this Agreement the acts or omissions of an Infrastructure Provider, but will provide commercially reasonable assistance to the performance Customer in the recovery of any such Loss. e) The Customer shall indemnify the Bank and any other member of the Services, except HSBC Group in full against any Loss arising from or in connection with a third party making a claim or demand against the Bank or other member of the HSBC Group as a result of the Bank or any other member of the HSBC Group processing an Instruction or otherwise performing its obligations hereunder in accordance with the Agreement. f) Neither the Bank nor any member of the HSBC Group are obliged to perform any of the extent such liability results from Services if to do so would result in the gross negligence Bank or willful misconduct any member of Sub-Adviser or the HSBC Group being in breach of this Agreement by Sub-Adviser. Without limiting the generality of the foregoing, the Sub-Adviser will not be liable to the Adviser for: (i) any loss of profits, loss of revenue, loss of reputation law or goodwill; (ii) any indirect, special or consequential loss; or (iii) any exemplary or punitive damages, whether arising in contract, tort, negligence, misrepresentation, for breach of duty (including without limitation statutory duty) or otherwise. Nothing in this Section 10(c) shall limit the liability of Adviser to the Sub-Adviser for the payment of fees under this Agreementregulation.