Common use of Services and Standard of Care Clause in Contracts

Services and Standard of Care. (1) BNY Mellon shall perform, in accordance with the Standard of Care, the Designated Services (including the Designated Services performed as part of the Termination Assistance Services) and any obligations under the Agreement that are identified as being subject to the Standard of Care. (2) BNY Mellon will have no duty or obligation under the Agreement to: (a) monitor compliance by Voya with any Laws applicable to Voya, except as such monitoring is expressly set forth in Exhibit 2; (b) act as principal in relation to any investment activity undertaken by Voya or any Voya Affiliate; (c) provide investment management services, broker-dealer services, investment advisory services, custody services, share distribution or tax advisory services; (d) provide asset valuation services, including independently determining the underlying market value or price of any Voya assets; (e) perform services, functions, or responsibilities that BNY Mellon is prohibited from performing by Law; (f) assume or fill a fiduciary role for Voya or any Voya Agent; or (g) commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service (collectively, “Excluded Items”). BNY Mellon shall not perform for Voya or any Voya Fund any services not included in the Agreement, except as requested by Voya and agreed by the Parties pursuant to the Change Procedures. (3) Voya hereby acknowledges and agrees that BNY Mellon is not a fiduciary by virtue of accepting and carrying out its obligations under the Agreement and has not accepted any fiduciary duties, responsibilities or liabilities with respect to any of the Services. (4) In the event that any assets of Voya constitute “plan assets” within the meaning of 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA, Voya acknowledges and agrees that: (a) BNY Mellon shall only provide, under the Agreement, those Services set forth in the Agreement; (b) the provision of the Services by BNY Mellon shall not cause it to be considered a fiduciary under Section 3(21) of ERISA with respect to the assets of Voya; (c) in providing the Services, BNY Mellon is not responsible for providing, and shall not be required to provide, any investment advice, supervision, recommendations or management, nor have or exercise any discretionary authority or responsibility, for or over Voya assets or Voya Fund assets under the Agreement; and (d) Voya maintains and follows procedures intended to avoid any nonexempt “prohibited transaction” as defined in Section 406 of ERISA with respect to the assets of Voya and Voya Funds. (5) All Deliverables produced by BNY Mellon, as outlined in Exhibit 2, that are related to regulatory filings, Voya Fund board meetings (including the preparation of materials and minutes with respect thereto) and compliance by a Voya Fund with Rule 38a-1 under the Investment Company Act of 1940 will be subject to review and approval by Voya and its legal counsel. BNY Mellon disclaims liability and responsibility for the selection, qualifications and performance of a Voya Fund’s chief compliance officer and for the adequacy and effectiveness of a Voya Fund’s compliance program.