Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY. (b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following: (i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund; (ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct; (iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel; (iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement; (v) The method of valuation of the securities and the method of computing each Series’ net asset value; or (vi) Any valuations of securities or net asset value provided by a Fund. (c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith. (d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 6 contracts
Samples: Fund Administration and Accounting Agreement (ETFis Series Trust I), Fund Administration and Accounting Agreement (ETFis Series Trust I), Fund Administration and Accounting Agreement (ETFis Series Trust I)
Standard of Care; Indemnification. (a) Except as a. No provisions of this Agreement shall be deemed to protect the Advisor against any liability to the Trust, the Funds of the Trust, or the Shareholders of the Funds to which the Advisor otherwise provided hereinwould be subject by reason of any willful misfeasance, BNY bad faith, or gross negligence in the performance of the Advisor's duties or the reckless disregard of the Advisor's obligations under this Agreement. Nor shall any provisions hereof be deemed to protect any Trustee or officer of the Trust against any such liability to which said Trustee or officer might otherwise be subject by reason of any willful misfeasance, bad faith, or gross negligence in the performance of the Trustee's or officer's respective duties or the reckless disregard of the Trustee's or officer's respective obligations.
b. In the absence of willful misfeasance, bad faith, gross negligence, or reckless disregard of the Advisor's obligations or duties hereunder, the Advisor shall not be liable subject to liability to the Trust, to the Funds, or to any Shareholder of the Funds for any costsact or omission in the course of, expensesor connected with, damagesrendering services hereunder or for any losses that may be sustained in the purchase, liabilities holding, or claims (including attorneys’ and accountants’ fees) incurred sale of any security or other property by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY The Advisor shall not be liable for required to do or refrain from doing or concur in anything which (by act or omission to act) may impose any lossliability on the Advisor.
c. Any person, damage or expenseeven though an officer, including counsel fees and other costs and expenses of a defense against any claim or liabilitydirector, resulting frompartner, arising out ofemployee, or in connection with its performance hereunderagent of the Trustee, including its actions who may be or omissionsbecome an officer, the incompleteness or inaccuracy of any specifications or other information furnished by the Funddirector, trustee, partner, employee, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out agent of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counselTrust, shall be conclusively presumed deemed when rendering such services to have been taken the Trust or omitted in good faith.
(d) Notwithstanding acting on any other provision contained in this Agreementbusiness of the Trust to be rendering such services to or acting solely for the Trust and not as the Trustee's officer, BNY shall have no duty or obligation with respect todirector, includingtrustee, without limitationpartner, any duty or obligation to determineemployee, or advise agent or notify as one under the Fund of: (a) Trustee's control or direction even though paid by the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect theretoTrustee.
Appears in 6 contracts
Samples: Investment Advisory Agreement (Rydex Etf Trust), Interim Investment Advisory Agreement (Rydex Dynamic Funds), Investment Advisory Agreement (Rydex Dynamic Funds)
Standard of Care; Indemnification. (a) Except None of the Managing Member (including, without limitation, in its capacity as otherwise provided herein, BNY the Administrator) or its Affiliates (each an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member or (iii) any losses due to the actions or omissions of the Advisors, any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this Agreement, even if previously informed of Agreement by any Member) the possibility of such damages and regardless of the form of action. BNY shall not be liable Company will periodically reimburse any Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence or willful misconduct Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of BNYthe Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by law.
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, act or regulation or official interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding . In no event shall the Bank be required to accept or act upon any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fundoral instructions; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws regardless of the Fund making or not making any distribution or dividend payment, or any election with respect theretocircumstances.
Appears in 5 contracts
Samples: Administration Agreement (Old Mutual/Claymore Long-Short Fund (f.k.a. Analytic Covered Call Plus Fund)), Administration Agreement (Advent Claymore Convertible Securities & Income Fund), Administration Agreement (Advent Claymore Global Convertible Opport Income Fd)
Standard of Care; Indemnification. (a) Except as otherwise provided hereinNone of the Managing Member or its Affiliates (each, BNY an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member or (iii) any losses due to the actions or omissions of the Advisors, any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any Person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this AgreementAgreement by any Member), even if previously informed of the possibility of Company will periodically reimburse such damages and regardless of the form of action. BNY shall not be liable Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence or willful misconduct Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of BNYthe Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by law.
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall indemnify the Fund against direct money damages arising out of BNY’s own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel reasonable attorneys fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(g) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own outside counsel;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 5 contracts
Samples: Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II), Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II), Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II)
Standard of Care; Indemnification. (a) Except as otherwise provided hereinIt is expressly understood and agreed that in exercising its rights and performing its obligations hereunder, BNY the Bank owes no fiduciary duty to the Lender. The Bank shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ attorneys and accountants’ accountants fees) incurred by a Fundthe Lender, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or the negligence, willful misconduct, bad faith, willful misfeasance or nonfeasance on the part of, or reckless disregard of its obligations and duties hereunder by, the Bank or any party to whom the Bank delegates any of its duties hereunder or a breach by the Bank of the terms of this Agreement. The Bank shall have no obligation hereunder for costs, expenses, damages, liabilities or claims (including reasonable attorneys and accountants fees), which are sustained or incurred by reason of any action or inaction by the Book-Entry System or any Depository or their respective successors or nominees. In no event shall BNY the Bank be liable to any Fund or any third party for special, indirect punitive or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYdamages.
(b) Each Fund shall The Lender agrees to indemnify the Bank and to hold it harmless BNY from and against any and all costs, expenses, damages, liabilities or claims, including reasonable fees and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating theretoexpenses of counsel, which are sustained the Bank may sustain or incurred incur or which may be asserted against BNY, the Bank by reason of or as a result of any action taken or omitted to be taken by BNY the Bank in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, connection with or arising out of transactions or other activities of such Fund which occurred prior to the commencement of Bank's operating under and in compliance with this Agreement; provided, that no Fund shall indemnify BNY for except those costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Bank's negligence, willful misconduct, bad faith, willful misfeasance or nonfeasance, or reckless disregard of its obligations and duties hereunder. This The foregoing indemnity shall be a continuing obligation of each Fundthe Lender, its successors and assigns, notwithstanding the termination of any loans hereunder or of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reasonable reliance on oral upon Oral or written instructionsWritten Instructions, any Certificate, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY the Bank to be genuine or bearing the signature of a person or persons reasonably believed by the Bank to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(c) The Bank shall indemnify and hold harmless the Lender from and against any and all loss, liability, costs, damages, actions, claims and expenses, including reasonable fees and expenses of counsel, that the Lender may sustain or incur or which may be asserted against the Lender arising out of the the Bank's negligence, willful misconduct, bad faith, misfeasance or nonfeasance or the reckless disregard of its obligations and duties hereunder.
(d) Notwithstanding any other provision contained in If at the time of a default by a Borrower with respect to a loan hereunder, some or all of the lent Securities under such loan have not been returned by the Borrower, and subject to the terms of this Agreement, BNY the Bank shall have no duty or obligation indemnify the Lender against the failure of the Borrower as follows.:
(i) The Bank shall purchase a number of Replacement Securities equal to the number of such unreturned lent Securities, to the extent that such Replacement Securities are available on the open market. Such Replacement Securities shall be purchased by applying the proceeds of the Collateral with respect to such loan to the purchase of such Replacement Securities. Subject to the Lender obligations set forth in Section 5.3 and 5.7 hereof, if and to the extent that such proceeds are insufficient or the Collateral is unavailable, the purchase of such Replacement Securities shall be made at the Bank's expense.
(ii) If the Bank is unable to purchase Replacement Securities pursuant to paragraph (i) above, the Bank shall credit to the Lender's account an amount equal to the market value of the unreturned lent Securities for which replacement securities are not so purchased, determined as of the first day on which the Bank was required to make a demand for additional Collateral from the Borrower and the Bank failed to make such demand or such demand did not result in the delivery of such additional Collateral.
(iii) In addition to making the purchases or credits required by paragraphs (i) and (ii) hereof, the Bank shall credit to the Lender's account the value of all distributions on the lent Securities (not otherwise credited to the Lender's accounts with the Bank), the record dates for which occur before the date that the Bank purchases Replacement Securities pursuant to paragraph (i) or credits the Lender's account pursuant to paragraph (ii).
(iv) Any credits required under paragraphs (i), (ii) or (iii) hereof shall be made by application of the proceeds of the Collateral (if any) that remains after the purchase of Replacement Securities pursuant to paragraph (i). If and to the extent that the Collateral is unavailable or the value of the proceeds of the remaining Collateral is less than the value of the sum of the credits required to be made under Paragraphs (i), (ii) or (iii), such credits shall be made at the Bank's expense.
(v) If after application of paragraphs (i) through (iv) hereof, additional Collateral remains or any previously unavailable Collateral becomes available or any additional amounts owed by the Borrower with respect to such loan are received from the Borrower, the Bank shall apply the proceeds of such Collateral or such additional amounts first to reimburse itself for any amounts expended by the Bank pursuant to paragraphs (i) through (iv) above, and then to credit to the Lender's account all other amounts owed by the Borrower to the Lender with respect to such loan under the applicable Securities Borrowing Agreement.
(vi) In the event that the Bank is required to make any payment and/or incur any loss or expense under this Section, the Bank shall, to the extent of such payment, loss, or expense, be subrogated to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable and succeed to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws all of the Fund making or not making any distribution or dividend payment, or any election with respect theretorights of the Lender against the Borrower under the applicable Securities Borrowing Agreement.
Appears in 4 contracts
Samples: Securities Lending Agency Agreement (CDC Nvest Funds Trust Iii), Securities Lending Agency Agreement (CDC Nvest Companies Trust I), Securities Lending Agency Agreement (CDC Nvest Funds Trust Ii)
Standard of Care; Indemnification. (a) Except as otherwise provided hereinIt is expressly understood and agreed that in exercising its rights and performing its obligations hereunder, BNY the Bank owes no fiduciary duty to the Lender. The Bank shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ attorneys and accountants’ accountants fees) incurred by a Fundthe Lender, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or the negligence, willful misconduct, bad faith, willful misfeasance or nonfeasance on the part of, or reckless disregard of its obligations and duties hereunder by, the Bank or any party to whom the Bank delegates any of its duties hereunder or a breach by the Bank of the terms of this Agreement. The Bank shall have no obligation hereunder for costs, expenses, damages, liabilities or claims (including reasonable attorneys and accountants fees), which are sustained or incurred by reason of any action or inaction by the Book-Entry System or any Depository or their respective successors or nominees. In no event shall BNY the Bank be liable to any Fund or any third party for special, indirect punitive or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYdamages.
(b) Each Fund shall The Lender agrees to indemnify the Bank and to hold it harmless BNY from and against any and all costs, expenses, damages, liabilities or claims, including reasonable fees and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating theretoexpenses of counsel, which are sustained the Bank may sustain or incurred incur or which may be asserted against BNY, the Bank by reason of or as a result of any action taken or omitted to be taken by BNY the Bank in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, connection with or arising out of transactions or other activities of such Fund which occurred prior to the commencement of Bank's operating under and in compliance with this Agreement; provided, that no Fund shall indemnify BNY for except those costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Bank's negligence, willful misconduct, bad faith, willful misfeasance or nonfeasance, or reckless disregard of its obligations and duties hereunder. This The foregoing indemnity shall be a continuing obligation of each Fundthe Lender, its successors and assigns, notwithstanding the termination of any loans hereunder or of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reasonable reliance on oral upon Oral or written instructionsWritten Instructions, any Certificate, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY the Bank to be genuine or bearing the signature of a person or persons reasonably believed by the Bank to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(c) The Bank shall indemnify and hold harmless the Lender from and against any and all loss, liability, costs, damages, actions, claims and expenses, including reasonable fees and expenses of counsel, that the Lender may sustain or incur or which may be asserted against the Lender arising out of the the Bank's negligence, willful misconduct, bad faith, misfeasance or nonfeasance or the reckless disregard of its obligations and duties hereunder.
(d) Notwithstanding any other provision contained in If at the time of a default by a Borrower with respect to a loan hereunder, some or all of the lent Securities under such loan have not been returned by the Borrower, and subject to the terms of this Agreement, BNY the Bank shall have no duty or obligation indemnify the Lender against the failure of the Borrower as follows:
(i) The Bank shall purchase a number of Replacement Securities equal to the number of such unreturned lent Securities, to the extent that such Replacement Securities are available on the open market. Such Replacement Securities shall be purchased by applying the proceeds of the Collateral with respect to such loan to the purchase of such Replacement Securities. Subject to the Lender obligations set forth in Section 5.3 and 5.7 hereof, if and to the extent that such proceeds are insufficient or the Collateral is unavailable, the purchase of such Replacement Securities shall be made at the Bank's expense.
(ii) If the Bank is unable to purchase Replacement Securities pursuant to paragraph (i) above, the Bank shall credit to the Lender's account an amount equal to the market value of the unreturned lent Securities for which Replacement Securities are not so purchased, determined as of the earlier of (i) the first day on which the Bank was required to make a demand for additional Collateral from the Borrower (and the Bank failed to make such demand or such demand did not result in the delivery of such additional Collateral) or (ii) the first day on which the lent Securities were not returned as required by the terms of the applicable loan.
(iii) In addition to making the purchases or credits required by paragraphs (i) and (ii) hereof, the Bank shall credit to the Lender's account the value of all distributions on the lent Securities (not otherwise credited to the Lender's accounts with the Bank), the record dates for which occur before the date that the Bank purchases Replacement Securities pursuant to paragraph (i) or credits the Lender's account pursuant to paragraph (ii).
(iv) Any credits required under paragraphs (i), (ii) or (iii) hereof shall be made by application of the proceeds of the Collateral (if any) that remains after the purchase of Replacement Securities pursuant to paragraph (i). If and to the extent that the Collateral is unavailable or the value of the proceeds of the remaining Collateral is less than the value of the sum of the credits required to be made under Paragraphs (i), (ii) or (iii), such credits shall be made at the Bank's expense.
(v) If after application of paragraphs (i) through (iv) hereof, additional Collateral remains or any previously unavailable Collateral becomes available or any additional amounts owed by the Borrower with respect to such loan are received from the Borrower, the Bank shall apply the proceeds of such Collateral or such additional amounts first to reimburse itself for any amounts expended by the Bank pursuant to paragraphs (i) through (iv) above, and then to credit to the Lender's account all other amounts owed by the Borrower to the Lender with respect to such loan under the applicable Securities Borrowing Agreement.
(vi) In the event that the Bank is required to make any payment and/or incur any loss or expense under this Section, the Bank shall, to the extent of such payment, loss, or expense, be subrogated to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable and succeed to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws all of the Fund making or not making any distribution or dividend payment, or any election with respect theretorights of the Lender against the Borrower under the applicable Securities Borrowing Agreement.
Appears in 4 contracts
Samples: Securities Lending Agency Agreement (CDC Nvest Funds Trust Ii), Securities Lending Agency Agreement (Loomis Sayles Funds Ii), Securities Lending Agency Agreement (Aew Real Estate Income Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall indemnify the Fund against direct money damages arising out of BNY’s own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement Statement, or Prospectus, Prospectus (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(g) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own outside counsel;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 4 contracts
Samples: Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II), Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II), Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY BNYM shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNYM’s own gross negligence or willful wilful misconduct. In no event shall BNY BNYM be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY BNYM shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNYM’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) BNYM. Each Fund shall indemnify and hold harmless BNY BNYM from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNYM, by reason of or as a result of any action taken or omitted to be taken by BNY BNYM in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYBNYM, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY BNYM for costs, expenses, damages, liabilities or claims for which BNY BNYM is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY BNYM against and save BNY BNYM harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) : Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY BNYM by any third party described above or by or on behalf of a Fund;
(ii) ; Action or inaction taken or omitted to be taken by BNY BNYM pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) ; Any action taken or omitted to be taken by BNY BNYM in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) ; Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY BNYM pursuant to this Agreement;
(v) ; The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) or Any valuations of securities or net asset value provided by a Fund.
(c) . Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY BNYM to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) . Notwithstanding any other provision contained in this Agreement, BNY BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (Ook Inc), Fund Administration and Accounting Agreement (Ook Inc), Fund Administration and Accounting Agreement (Ook Inc)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a the Trust or any Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful misconduct. In no event shall BNY be liable to the Trust, any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall be liable to the Trust and the applicable Fund for direct money damages caused by BNY's own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNY’s 's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Trust on behalf of the applicable Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Trust), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealedsame, (ii) such Fund’s the Registration Statement or ProspectusProspectus of any Fund, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such Fund the Trust or BNY, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no neither the Trust nor any applicable Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Trust on behalf of the applicable Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Trust on behalf of the applicable Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(h) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund Trust or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own outside counsel;
(iv) Any improper use by a Fund the Trust or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ Fund's net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Ii), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Alphadex Fund), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Ii)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselFund;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) In no event shall the Fund be liable to BNY or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action.
(d) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counselFund, shall be conclusively presumed to have been taken or omitted in good faith.
(de) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (GLG Investment Series Trust), Fund Administration and Accounting Agreement (GLG Investment Series Trust), Fund Administration and Accounting Agreement (GLG Investment Series Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon, any BNY Mellon Affiliate or the Trust be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYFund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 10(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or Mellon by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselFund;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding Subject to the limitations of liability set forth in Section 10(a) above, each Fund shall not be responsible for, and BNY Mellon shall indemnify and hold each Fund harmless from and against, any other provision contained in and all direct costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, directly arising out of BNY Mellon’s bad faith, gross negligence, or willful misconduct.
(e) The terms of this Section 10 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (BNY Mellon ETF Trust II), Fund Administration and Accounting Agreement (BNY Mellon ETF Trust II), Fund Administration and Accounting Agreement (BNY Mellon ETF Trust II)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s the Bank's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYthe Bank.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or proper interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoingforegoing (and subject to the proviso at the end of the first sentence of in this Section 6(b)), each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY the Bank by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use in violation of applicable laws by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ ' net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (Clarion Investment Trust), Fund Administration and Accounting Agreement (Clarion CMBS Value Fund Inc), Fund Administration and Accounting Agreement (Clarion Value Fund Master LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Simplify Exchange Traded Funds), Fund Administration and Accounting Agreement (Exchange Traded Spreads Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(ia) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(iib) Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iiic) Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(ivd) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(ve) The method of valuation of the securities and the method of computing each Series’ Fund’s net asset value; or
(vif) Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding In no event, shall the Trust be liable for special, indirect or consequential damages, regardless of the form of action and even if the same were foreseeable.
(e) The BNY Mellon shall indemnify the Trust and hold the Trust and its trustees, officers and agents harmless from and against any other provision contained in and all Losses sustained or incurred by the Trust to the extent caused by the BNY Mellon’s own gross negligence, bad faith or willful misconduct or that of its employees; its reckless disregard of its obligations under this Agreement; provided however, that BNY Mellon shall not indemnify the Trust for those Losses arising out of the Trust’s own negligence, bad faith, willful misconduct or reckless disregard of its obligations under this Agreement. In no event, shall the Bank be liable for special, indirect or consequential damages, regardless of the form of action and even if the same were foreseeable.
(f) Each party shall have no a duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify mitigate damages for which the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect theretoother party may become responsible.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement, Fund Administration and Accounting Agreement (GraniteShares ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s 's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY. Notwithstanding the foregoing or any other provision contained herein, in no event shall BNY be liable for any failure of BNY to note or advise of any noncompliance with any credit, investment, or eligibility guideline or policy, even if BNY is monitoring the same.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; providedPROVIDED, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ ' net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (ai) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (bii) the taxable nature or effect on a Fund or its shareholders Members of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (ciii) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholdersMembers; or (div) the effect under any federalFederal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(e) In providing the services hereunder BNY is authorized to utilize any vendor (including without limitation pricing and valuation services and legal or regulatory compliance monitoring services) reasonably believed by BNY to be reliable to provide information. The Funds each agree that BNY shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any vendor utilized by BNY or any permitted delegee or agent hereunder, and that no such vendor shall be an agent or delegee of BNY.
Appears in 2 contracts
Samples: Services Agreement (Ivy Long/ Short Hedge Fund LLC), Services Agreement (Ivy Multi Manager Hedge Fund LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (AdvisorShares Trust), Fund Administration and Accounting Agreement (AdvisorShares Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of BNY’s breach of its obligations under this Agreement or out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYBNY must notify Fund if relying on BNY counsel opinion contrary to the provision of service as contemplated pursuant to the Agreement, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a), or for indirect, special or consequential damages or lost profits. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above a Fund or by or on behalf of a Fundits authorized agents;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) BNY shall indemnify and hold harmless each Fund from and against any and all costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against such Fund, by reason of or as a result of any action taken or omitted to be taken by a BNY hereunder; provided, that BNY shall not indemnify a Fund for costs, expenses, damages, liabilities or claims, unless a court of competent jurisdiction has determined that BNY had breached a duty hereunder which caused such costs, expenses, damages, liabilities or claims and that in no case shall BNY indemnify a Fund for costs, expenses, damages, liabilities or claims for indirect, special or consequential damages or lost profits. This indemnity shall be a continuing obligation of the BNY, its successors and assigns, notwithstanding the termination of this Agreement.
(d) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (MTB Group of Funds), Fund Administration and Accounting Agreement (MTB Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall exercise reasonable care and diligence in carrying out all of its duties and obligations under this Agreement and BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including reasonable attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence negligence, bad faith, willful misfeasance, reckless disregard of its duties hereunder, or willful misconductbreach of any representation or warranty of BNY contained in this Agreement. In no event shall BNY either party be liable to any Fund the other party or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred by or which may be asserted by a third party against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYpursuant to Section 4(j) of this Agreement, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. .
(c) Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise carried out by BNY without gross negligence negligence, bad faith, willful misfeasance or willful misconductreckless disregard of its duties hereunder;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselcounsel pursuant to Section 4(i) of this Agreement;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ Fund’s net asset valuevalue to the extent such methods were instructed by a Fund or its agents, directly or by way of its Prospectus; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(cd) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith, which presumption may be rebutted by evidence.
(de) BNY agrees to indemnify and hold harmless each Fund, its officers, directors and employees and their respective successors and permitted assigns from and against any and all liabilities, claims, costs, fines, damages, expenses, losses and reasonable attorneys’ fees determined by a final arbiter of competent jurisdiction to have arisen out of BNY’s negligence, bad faith, willful misfeasance, reckless disregard for its duties hereunder, or breach of any representation or warranty of BNY contained in this Agreement; provided, that the Fund shall not be entitled to indemnification hereunder for costs, expenses, damages, liabilities or claims arising out of its negligence, bad faith, willful misfeasance, reckless disregard of its duties hereunder, or breach of any representation or warranty of the Fund contained in this Agreement. This indemnity shall be a continuing obligation of BNY, its successors and assigns, notwithstanding the termination of this Agreement.
(f) A party seeking indemnification hereunder (the “Indemnified Party”) shall (i) provide prompt notice to the other party of any claim (“Claim”) for which it intends to seek indemnification, (ii) grant control of the defense and for settlement of the Claim to the other party, and (iii) cooperate with the other party in the defense thereof. The Indemnified Party shall have the right at its own expense to participate in the defense of any Claim, but shall not have the right to control the defense, consent to judgment or agree to the settlement of any Claim without the written consent of the other party. The party providing the indemnification shall not consent to the entry of any judgment or enter any settlement which (i) does not include, as an unconditional term, the release by the claimant of all liabilities for Claims against the Indemnified Party or (ii) which otherwise adversely affects the rights of the Indemnified Party.
(g) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(h) All obligations of a Fund under this Agreement shall apply only on a Series by Series basis, and the assets of one Series shall not be liable for the obligations of another Series.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Reality Shares ETF Trust), Fund Administration and Accounting Agreement (Reality Shares ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided hereinNone of the Managing Member or its Affiliates (each, BNY an “Indemnified Person” and collectively the “Indemnified Persons”) shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member or (iii) any losses due to the actions or omissions of the Advisors, any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any Person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company’s business or affairs (including a breach of this AgreementAgreement by any Member), even if previously informed of the possibility of Company will periodically reimburse such damages and regardless of the form of action. BNY shall not be liable Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company’s business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence or willful misconduct Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of BNYthe Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person’s official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by law.
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member’s status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC)
Standard of Care; Indemnification. (a) BNY shall act in good faith in carrying out its duties hereunder. Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence negligence, bad faith or willful misconductwilful misconduct or reckless disregard for its duties and obligations hereunder. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s 's control, unless such loss, damage or expense arises out of the gross negligence negligence, bad faith or willful misconduct of BNYBNY or reckless disregard for its duties and obligations hereunder.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund; provided however that if BNY after making a good faith effort to seek guidance from Fund or counsel does not receive the required guidance in a reasonable period of time, then BNY may seek and rely on the advice of counsel to BNY, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund's approval,, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party as described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund's approval, subject to the limitations set forth above;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities Securities and the method of computing each Series’ ' net asset value; or
(vi) Any valuations of securities Securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, subject to the limitations set forth herein, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (TDAX Funds, Inc.), Fund Administration and Accounting Agreement (Realty Funds, Inc.)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Accounting Agreement (ALPS ETF Trust), Fund Accounting Agreement (ALPS ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall indemnify the Fund against direct money damages arising out of BNY’s own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(apreceding
6(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel reasonable attorney’s fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(g) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own outside counsel;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust), Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a or asserted against the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any the Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each The Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such the Fund or BNYBNY Mellon, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a the Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counsel;
(iv) IV. Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valueNet Asset Value; orand
(vi) VI. Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a the Fund or its BNY Mellon’s own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Versus Capital Real Assets Fund LLC), Fund Administration and Accounting Agreement (Versus Capital Real Assets Fund LLC)
Standard of Care; Indemnification. (a) Except None of the Managing Member (including, without limitation, in its capacity as otherwise provided herein, BNY the Administrator) or its Affiliates (each an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member, or (iii) any losses due to the actions or omissions of any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any Person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this Agreement, even if previously informed of Agreement by any Member) the possibility of Company will periodically reimburse such damages and regardless of the form of action. BNY shall not be liable Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence or willful misconduct Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of BNYthe Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by law.
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own bad faith, gross negligence negligence, willful misconduct or willful misconductreckless disregard of its duties hereunder. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s 's control, unless such loss, damage or expense arises out of the BNY's bad faith, gross negligence or negligence, willful misconduct or reckless disregard of BNYits duties hereunder.
(b) Each Fund Fund, severally and not jointly, shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, (x) by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or hereunder; (y) in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, ; (ii) such Fund’s the Trust's Registration Statement or Prospectus, ; (iii) any instructions Proper Instructions of an officer of such Fund, or Authorized Person; (iv) any opinion of legal counsel for such Fund the Trust or BNY, ; or (z) arising out of transactions or other activities of such a Fund which that occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund Fund, severally and not jointly, shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the followingfollowing without bad faith, gross negligence, willful misconduct or reckless disregard of BNY's duties hereunder:
(i1) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described in (iii) or (iv) above or by or on behalf of a the Fund;
(ii2) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions Proper Instructions by or on behalf of the Fund or otherwise without gross negligence or willful misconductFund;
(iii3) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Trust by or on behalf of the Fund or its own counsel;
(iv4) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v5) The method of valuation of the Fund's portfolio securities and the method of computing each Series’ the Fund's net asset value; provided that such valuation or computation conforms to the Fund's then-effective Prospectus and valuation procedures actually provide to BNY; or
(vi6) Any valuations of the Fund's portfolio securities or net asset value provided to BNY by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding BNY shall not be liable for any other provision contained loss, damage or expense resulting from or arising out of the failure of the Trust to cause any information or, documents to be provided to BNY as provided in Section 5(e) herein, except where such failure is attributable to BNY's bad faith, gross negligence, willful misconduct or reckless disregard of its duties hereunder.
(e) The terms of this Section 8 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (RevenueShares ETF Trust), Fund Administration and Accounting Agreement (RevenueShares ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fundor asserted against the Administrator, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross bad faith, negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any the Administrator, the Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Administrator or the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund The Administrator shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, negligence or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement the Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such the Fund or BNYBNY Mellon, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no Fund the Administrator shall not indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(aSection 9(a). This indemnity shall be a continuing obligation of each Fundthe Administrator, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Administrator shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(iI) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above above, the Administrator or by or on behalf of a the Fund;
(iiII) Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Administrator or otherwise without gross negligence negligence, bad faith or willful misconduct;
(iiiIII) Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counsel;
(ivIV) Any improper use by a Fund the Administrator or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(vV) The method of valuation of the securities and the method of computing each Series’ net asset valuethe Net Asset Value; orand
(viVI) Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a the Administrator or the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund the Fund, the Administrator or its BNY Mellon’s own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) BNY Mellon agrees to indemnify, defend and hold harmless the Administrator from and against any Losses, subject to, and in an amount not to exceed the limitation of aggregate liability described in Section 9(e) below, that may be imposed on, incurred by or asserted against the Administrator and directly arising out of the actual fraud, bad faith, negligence, or willful misconduct of BNY Mellon or any BNY Mellon Affiliate, in each case, as determined by a court of competent jurisdiction; provided, that the Administrator shall not be entitled to indemnification hereunder for costs, expenses, damages, liabilities or claims arising out of its or their own actual fraud, negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of BNY Mellon, its successors and assigns, notwithstanding the termination of this Agreement.
(e) Notwithstanding the foregoing or any other provision contained in this Agreement or applicable law to the contrary, BNY Mellon and the Administrator agree that to the extent that BNY Mellon or any BNY Mellon Affiliate would otherwise be liable hereunder (including for any indemnity), in no event shall BNY Mellon’s and such BNY Mellon Affiliate’s total maximum aggregate liability under this Agreement, BNY shall have no duty whether based on a claim in contract or obligation in tort, law or equity, for any reason and upon any cause of action whatsoever, exceed one (1) year’s fees (based on the fees paid by the Administrator for the services provided pursuant to this Agreement during the preceding 12 month period); provided, however, that such limitation of liability with respect toto Section 9(a) shall not be applicable to any act of BNY Mellon or any BNY Mellon Affiliate involving gross negligence, includingbad faith, without limitation, any duty actual fraud or obligation to determine, or advise or notify willful misconduct.
(f) In the Fund of: (a) the taxable nature event of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend paymentdemand, or any election civil, criminal, administrative, or investigative claim, action, or proceeding (including arbitration) asserted, commenced or threatened against an entity or person (a “Claim”), upon the assertion of such Claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect theretoto all developments concerning such claim; provided, however, that any failure by a party to provide such notice shall not relieve the other party of its obligations to indemnify and hold harmless the other party pursuant to the terms of this Agreement except to the extent that the indemnifying party can demonstrate actual prejudice as a result of such failure.
Appears in 2 contracts
Samples: Sub Administration and Accounting Agreement (KKR Enhanced US Direct Lending Fund-L), Sub Administration and Accounting Agreement (KKR US Direct Lending Fund-U)
Standard of Care; Indemnification. (a) Except None of the Managing Member (including, without limitation, in its capacity as otherwise provided hereinthe Administrator) or its Affiliates (each, BNY an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member or (iii) any losses due to the actions or omissions of the Advisors, any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this AgreementAgreement by any Member), even if previously informed of the possibility of Company will periodically reimburse such damages and regardless of the form of action. BNY shall not be liable Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence or willful misconduct Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of BNYthe Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by applicable law.
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC), Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own bad faith, gross negligence or willful wilful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own gross negligence, bad faith or wilful misconduct. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Administration Agreement (Milestone Funds), Administration Agreement (Milestone Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any lossFor purposes of this provision, damage or expense, including counsel fees and other costs and expenses of if as a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out result of the gross negligence or willful misconduct of BNYBNY or that of its directors, officers or employees, agents or delegates, there is a material error in the net asset value per share of a Fund, the material losses of the Fund on the sale and issuance, or the redemption, of its shares attributable to such material error shall be direct money damages.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action reasonably taken or omitted to be taken by BNY in good faith hereunder or in reasonable reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; providedPROVIDED, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:.
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fundthe Funds;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross bad faith, negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith and with prompt notice to the Funds in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities Securities and the method of computing each Series’ ' and Class' net asset valuevalue consistent with paragraph 4(a); or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken BNY shall indemnify and hold harmless the Funds from and against any loss, damage or omitted expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability (including any claims asserted by BNY) arising out of the negligence or willful misconduct of BNY, except that in reliance on oral no event shall BNY be liable for, nor indemnify the Funds for, special, indirect or written instructionsconsequential damages, or upon any informationfor lost profits or loss of business. For purposes of this provision, orderif as a result of the negligence or willful misconduct of BNY or that of its directors, indentureofficers or employees, stock certificateagents or delegates, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing there is a material error in the signature net asset value per share of a person or persons believed to be authorized to signFund, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws material losses of the Fund making or not making any distribution or dividend paymenton the sale and issuance, or any election with respect theretothe redemption, of its shares attributable to such material error shall be direct money damages. This indemnity shall be a continuing obligation of BNY, its successors and assigns, notwithstanding the termination of this Agreement.
Appears in 2 contracts
Samples: Fund Accounting Agreement (Ing Get Fund), Fund Accounting Agreement (Ing Global Equity Dividend & Premium Opportunity Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fundor asserted against FT Services, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross negligence bad faith, negligence, willful misconduct or willful misconductreckless disregard of its duties hereunder. In no event shall either BNY Mellon or FT Services be liable to any Fund the other party or to any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness in good faith reliance on incomplete or inaccuracy of any inaccurate specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s controlFT Services, unless such loss, damage or expense arises out of the gross negligence or BNY Mellon’s bad faith, negligence, willful misconduct or reckless disregard in the performance of BNYits duties hereunder.
(b) Each Fund FT Services shall indemnify and hold harmless BNY Mellon from and against any and all third party costs, expenses, damages, liabilities and claims (including claims asserted by a Fund)claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon by a third party, (x) by reason of or as a result of any action taken or omitted to be taken by BNY Mellon without bad faith, negligence, willful misconduct or reckless disregard of its duties hereunder; (y) in good faith hereunder or in reasonable reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, ; (ii) such Fund’s Registration Statement Offering Materials or Prospectus, Documents (excluding information provided by BNY Mellon); (iii) any instructions of an officer of such Fund, Instructions; or (iv) any opinion of legal counsel for such Fund FT Services or BNY, BNY Mellon; or (z) arising out of transactions or other activities of such Fund which FT Services that occurred prior to the commencement of this Agreement; provided, that no Fund FT Services shall not indemnify BNY Mellon for costs, expenses, damages, liabilities or claims for which BNY Mellon is liable under the preceding 7(asub-section 10(a). This indemnity shall be a continuing obligation of each FundFT Services, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund FT Services shall indemnify BNY Mellon against and save BNY Mellon harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described in (iii) and (iv) above or by or on behalf of a FundFT Services;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon pursuant to written or oral instructions of the Fund Instructions or otherwise without gross negligence bad faith, negligence, willful misconduct or willful misconductreckless disregard of its duties hereunder;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselof FT Services;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor FT Services of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the a Fund’s portfolio securities and the method of computing each Series’ net asset valueFund’s Net Asset Value; provided that such valuation or computation conforms to the Fund’s Offering Materials and valuation procedures actually provided to BNY Mellon; or
(vi) VI. Any valuations of a Fund’s portfolio securities or net asset value the Net Asset Value provided to BNY Mellon by a FundFT Services.
(c) FT Services and the Funds shall not be responsible for, and BNY Mellon shall indemnify and hold FT Services and the Funds harmless from and against, any and all third party costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred by FT Services and finally determined by an arbiter of appropriate jurisdiction as a result of BNY Mellon’s bad faith, negligence, willful misconduct or reckless disregard of its duties hereunder.
(d) In order that the indemnification provisions contained in this Section 10 shall apply, upon the assertion of a claim for which one party may be required to indemnify the other party, the indemnified party shall promptly notify the indemnifying party of such assertion, and shall keep the indemnifying party advised with respect to all developments concerning such claim. The indemnifying party shall have the option to participate with the indemnified party in the defense of such claim or to defend against said claim in its own name or in the name of the indemnified party. The indemnified party shall in no case confess any claim or make any compromise in any case in which the indemnifying party may be required to indemnify the indemnified party except with the indemnifying party’s prior written consent. In no event will FT Services or the Funds be liable for any settlement of any action or claim effected without their prior written consent.
(e) Actions taken or omitted in good faith reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund FT Services or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(df) Notwithstanding any other provision contained in The terms of this Section 10 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Subcontract for Fund Administration and Accounting Services (Franklin Alternative Strategies Funds), Subcontract for Fund Administration and Accounting Services (Franklin Alternative Strategies Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon shall exercise reasonable care and diligence in carrying out all of its duties and obligations under this Agreement and BNY Mellon shall not be liable for any costs, expenses, damages, liabilities or claims (including reasonable attorneys’ and accountants’ fees) incurred by or asserted against the Trust, or the Trust on behalf of a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross negligence negligence, bad faith, willful misfeasance, reckless disregard of its duties hereunder, or willful misconductbreach of any representation or warranty of BNY Mellon contained in this Agreement. In no event shall BNY either party be liable to any Fund the other party or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund Subject to the limitations set forth in Section 10 below, the Trust and/or each Fund, as applicable, shall indemnify and hold harmless BNY Mellon from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by the Trust or a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred by or which may be asserted by a third party against BNYBNY Mellon, by reason of or as a result of any action taken or omitted to be taken by BNY Mellon in good faith hereunder or in reliance upon (i) any law, act, regulation the Trust’s Offering Materials or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealedDocuments (excluding information provided by BNY Mellon), (ii) such Fund’s Registration Statement or Prospectusany Instructions of an Authorized Person, or, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such each Fund or BNYpursuant to Section 5(h) of this Agreement, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided. Provided, that no Fund shall indemnify BNY Mellon for costs, expenses, damages, liabilities or claims for which BNY Mellon is liable under preceding 7(asubsection 9(a). This indemnity shall be a continuing obligation of the Trust and each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, the Trust and/or each Fund Fund, as applicable, shall indemnify BNY Mellon against and save BNY Mellon harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or Mellon by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY Mellon pursuant to written or oral instructions of the Fund Trust on behalf of the Funds or otherwise carried out by BNY Mellon without gross negligence negligence, bad faith, willful misfeasance or willful misconductreckless disregard of its duties hereunder;
(iii) Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for the Trust or a Fund or its own counselcounsel pursuant to Section 5(h) of this Agreement;
(iv) Any improper use by the Trust or a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ Fund’s net asset valuevalue to the extent such methods were instructed by a Fund or its agents, directly or by way of its Prospectus; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement, Fund Administration and Accounting Agreement (World Currency Gold Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a FundFund (collectively “Claims”), except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence negligence, bad faith, or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence negligence, bad faith or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims Claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reasonable reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer Authorized Person of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims Claims for which BNY is liable under preceding 7(a)8(a) or for any Claims that constitute indirect, special or consequential damages or lost profits. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconductFund, and carried out in accordance with its standard of care;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(viv) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed in good faith by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained BNY shall indemnify and hold harmless each Fund from and against all Claims where such Claims have arisen directly out of BNY’s failure to discharge its duties in accordance with its standard of care as set forth hereunder. This indemnity shall be a continuing obligation of BNY, its successors and assigns, notwithstanding the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Goldman Sachs Variable Insurance Trust), Fund Administration and Accounting Agreement (Goldman Sachs Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any lossFor purposes of this provision, damage or expense, including counsel fees and other costs and expenses of if as a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out result of the gross negligence or willful misconduct of BNYBNY or that of its directors, officers or employees, agents or delegates, there is a material error in the net asset value per share of a Fund, the material losses of the Fund on the sale and issuance, or the redemption, of its shares attributable to such material error shall be direct money damages.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action reasonably taken or omitted to be taken by BNY in good faith hereunder or in reasonable reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.,
Appears in 2 contracts
Samples: Fund Accounting Agreement (Voya Credit Income Fund), Fund Accounting Agreement (Voya Enhanced Securitized Income Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall indemnify the Fund against direct money damages arising out of BNY’s own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel reasonable attorney’s fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(g) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own outside counsel;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust), Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, act or regulation or official interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding . In no event shall the Bank be required to accept or act upon any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fundoral instructions; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws regardless of the Fund making or not making any distribution or dividend payment, or any election with respect theretocircumstances.
Appears in 2 contracts
Samples: Administration Agreement (Madison Claymore Covered Call Fund), Administration Agreement (Ts&w / Claymore Tax-Advantaged Balanced Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s BNY Mellon's own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s BNY Mellon's reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement 's Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ ' net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Accounting Agreement (Spinnaker ETF Trust), Fund Accounting Agreement (Spinnaker ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross bad faith, negligence or willful misconductmisconduct or reckless disregard of its duties hereunder. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross BNY’s bad faith, negligence or willful misconduct or reckless disregard of BNYits duties.
(b) Each Fund severally and not jointly shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions Proper Instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such Fund or BNYFund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a9(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund severally and not jointly shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written Proper Instructions by or oral instructions on behalf of the Fund or otherwise without gross negligence or willful misconduct;Fund[stet]; [stet]
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for the Trust, by or on behalf of a Fund or its own counselFund;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor advisers of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the Fund’s portfolio securities and the method of computing each Series’ a Fund’s net asset valuevalue provided that such valuation or computation conforms to the Fund’s then-effective Prospectus and valuation procedures actually provided to BNY or Proper Instructions; or
(vi) Any valuations of the Fund’s portfolio securities or net asset value provided to BNY by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counselthe Trust, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in The terms of this Section 9 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Columbia ETF Trust), Fund Administration and Accounting Agreement (Grail Advisors ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross bad faith, negligence or willful misconduct. BNY Mellon’s maximum aggregate cumulative liability under this Agreement (including, without limitation, for all losses, claims, suits, controversies, breaches or damages of any nature), for any reason and upon any cause of action whatsoever, whether asserted by a Fund, the Trust or any other person, and regardless of the form of action or legal theory (“Loss”), shall not exceed the total amount of fees actually received by BNY Mellon with respect to the Trust for services provided hereunder during the eighteen (18) calendar months immediately prior to the date of such Loss. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund The Trust shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, negligence or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such Fund the Trust or BNYBNY Mellon, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each Fundthe Trust, its successors and assigns, notwithstanding the termination of this AgreementAgreement with respect to the Trust. Without limiting the generality of the foregoing, each Fund the Trust shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save hold BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fundthe Trust;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Trust or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own counsel;
(iv) IV. Any improper use by a Fund the Trust or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valueFund’s Net Asset Value; orand
(vi) VI. Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its BNY Mellon’s own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Third Avenue Trust), Fund Administration and Accounting Agreement (Third Avenue Variable Series Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross bad faith, negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such the Fund, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)) hereof. This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following, other than those for which BNY is otherwise liable under preceding 7(a) hereof:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fundthe Fund for which BNY believes in good faith to be genuine and accurate;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconductfor which BNY believes in good faith to be genuine and accurate;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counselcounsel provided that the actions taken or omitted to be taken by BNY are taken in good faith;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ the Fund’s net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed in good faith by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a the Fund; (b) the taxable nature or effect on a the Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a the Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Thirty Eight Hundred Fund LLC), Fund Administration and Accounting Agreement (Thirty Eight Hundred Fund LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY BNYM shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a the Trust or any Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s BNYM's own gross negligence or willful misconduct. In no event shall BNY BNYM be liable to the Trust, any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNYM shall be liable to the Trust and the applicable Fund for direct money damages caused by BNYM's own negligence or willful misconduct. BNY BNYM shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNY’s BNYM's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYBNYM.
(b) Each The Trust on behalf of the applicable Fund shall indemnify and hold harmless BNY BNYM from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Trust), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNYM, by reason of or as a result of any action taken or omitted to be taken by BNY BNYM in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealedsame, (ii) such Fund’s the Registration Statement or ProspectusProspectus of any Fund, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such Fund the Trust or BNYBNYM, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no neither the Trust nor any applicable Fund shall indemnify BNY BNYM for costs, expenses, damages, liabilities or claims for which BNY BNYM is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Trust on behalf of the applicable Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Trust on behalf of the applicable Fund shall indemnify BNY BNYM against and save BNY BNYM harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY BNYM by any third party described above in 4(e) or by or on behalf of a Fund4(h) above;
(ii) Action or inaction taken or omitted to be taken by BNY BNYM pursuant to written or oral instructions of the Fund Trust or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY BNYM in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own outside counsel;
(iv) Any improper use by a Fund the Trust or its agents, distributor or investment advisor of any valuations or computations supplied by BNY BNYM pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ Fund's net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY BNYM to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Iv), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Iv)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s the Bank's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYthe Bank.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY the Bank by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ ' net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Accounting Agreement (Ing Variable Insurance Trust), Fund Accounting Agreement (Ing Equity Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund)claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith without gross negligence, reckless disregard, or willful misconduct in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valueNet Asset Value; or
(vi) VI. Any valuations of securities securities, other assets, or net asset value the Net Asset Value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY Each party shall have no a duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify mitigate damages for which the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect theretoother party may become responsible.
Appears in 2 contracts
Samples: Fund Administration and Accounting Services Agreement, Fund Administration and Accounting Agreement (Metropolitan West Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fundthe Trust, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund The Trust shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Trust), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYthe Trust, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no Fund the Trust shall not indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding sub-section 7(a). This indemnity shall be a continuing obligation of each Fundthe Trust, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Trust shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fundthe Trust;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Trust or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own counsel;
(iv) IV. Any improper use by a Fund the Trust or its agents, distributor or investment advisor Sponsor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ the Trust’s net asset value; or
(vi) VI. Any valuations of securities or net asset value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (Bitwise Ethereum ETF), Fund Administration and Accounting Agreement (Bitwise Bitcoin ETF)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a FundOMFS, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross or BNY’s delegee or agent that is a subsidiary of The Bank of New York Mellon Corporation negligence or willful misconductmisconduct or BNY’s failure to act in good faith. In no event shall BNY be liable to any Fund OMFS or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, resulting from or arising out of the incompleteness or inaccuracy of any specifications or other information furnished by the FundOMFS, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY or BNY’s failure to act in good faith.
(b) Each Fund OMFS shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a FundOMFS), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against by BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) reasonable reliance upon any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such reliance upon a Fund’s Registration Statement or Prospectus, (iii) reliance upon any instructions of an officer of such FundOMFS, or (iv) reliance upon any opinion of legal counsel for such Fund OMFS or BNYBNY pursuant to Section 4(i) of this Agreement, or arising out of transactions or other activities of such a Fund which occurred prior to the commencement of this Agreement; provided, that no Fund OMFS shall not indemnify BNY for costs, expenses, damages, liabilities or claims and reasonable attorneys’ and accountants’ fees relating thereto, which constitute indirect, special or consequential damages or lost profits, or for which BNY is or may be liable under preceding 7(a6(a), and further provided that legal counsel for OMFS or the Funds shall be under no obligation to provide legal advice to BNY concerning any matter. This indemnity shall be a continuing obligation of each FundOMFS, its successors and assigns, notwithstanding the termination of this Agreement. In the event a claim is asserted against OMFS or a Fund arising out of or in connection with any action or inaction by BNY in performing its duties in accordance with the standard of care set forth hereunder (a “Claim”), and to the extent OMFS or such Fund asserts and is successful in a related claim against BNY in which it is determined by a court or arbiter of competent jurisdiction that BNY failed to discharge its duties in accordance with the standard of care as set forth hereunder, then BNY shall indemnify OMFS and such Fund for any and all costs, expenses, direct damages, liabilities or claims (including attorneys’ and accountants’ fees) sustained or incurred as a result of such Claim. Without limiting the generality of the foregoing, each Fund OMFS shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above OMFS or by or on behalf of a Fundits designees;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund OMFS or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund OMFS or its own counselcounsel pursuant to Section 4(i) of this Agreement;
(iv) Any improper use by a Fund OMFS or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset valuevalue as set forth in the registration statement in effect at the time of such calculation or as directed by OMFS; or
(vi) Any valuations of securities or net asset value provided by OMFS or a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund OMFS or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 2 contracts
Samples: Fund Sub Administration and Accounting Agreement (Old Mutual Funds III), Fund Sub Administration and Accounting Agreement (Old Mutual Advisor Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials (if any) or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this AgreementAgreement with respect to such Fund. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) i. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a the Fund;
(ii) . Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) . Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counsel;
(iv) . Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) v. The method of valuation of the securities and the method of computing each Series’ net asset valueFund’s Net Asset Value; orand
(vi) . Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its BNY Mellon’s own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Simplify Exchange Traded Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Williams Capital Management Trust)
Standard of Care; Indemnification. (a) In performing all of its duties and obligations hereunder, BNY Mellon shall exercise the standard of care and diligence that a professional service provider would observe in the provision of the services rendered pursuant to this Agreement. Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any and all costs, expenses, losses, charges, damages, liabilities or claims (claims, including reasonable and documented attorneys’ and accountants’ fees) fees and expenses (collectively, “Losses”), incurred by a Fundor asserted against the Trust, except those costs, expenses, damages, liabilities or claims Losses arising out of BNYBNY Mellon’s own gross negligence negligence, bad faith or willful misconduct. In no event shall the Trust, BNY Mellon or any BNY Mellon Affiliate be liable to for any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liabilityLosses, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, unless such Losses arise out of the bad faith, gross negligence or willful misconduct of BNY Mellon, nor shall BNY Mellon be liable for any Losses for delays caused by circumstances beyond BNY’s controlthe reasonable control of BNY Mellon or any agent of BNY Mellon and which adversely affect the performance by BNY Mellon of its obligations and duties hereunder or by any other agent of BNY Mellon, unless including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. Upon the occurrence of any such loss, damage delay or expense arises out of failure the gross negligence or willful misconduct of BNYBank shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances.
(b) Each Fund shall The Trust agrees to indemnify BNY Mellon and any BNYM Affiliate (the “Indemnitees”) and agrees to hold the Indemnitees harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are Losses sustained or incurred by or which may be asserted against BNY, an Indemnitee by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder any Indemnitee or otherwise or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any written opinion of legal counsel for such Fund the Trust or BNYBNY Mellon, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; providedprovided however, that no Fund the Trust shall not indemnify BNY any Indemnitee for costsany Losses arising out of such Indemnitee’s own bad faith, expenses, damages, liabilities gross negligence or claims for which BNY is liable under preceding 7(a)willful misconduct in the performance of this Agreement. This indemnity shall be a continuing obligation of each Fundthe Trust, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Trust shall indemnify BNY the Indemnitees against and save BNY the Indemnitees harmless from any loss, damage or expense, including reasonable and documented counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or Mellon by or on behalf of a Fundthe Trust;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Trust or otherwise without gross negligence negligence, bad faith or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own counsel, provided that such written advice or opinion of counsel is obtained in accordance with Section 5(h);
(iv) IV. Any improper use by a Fund the Trust or its agents, distributor or investment advisor Sponsor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valuethe Net Asset Value of the Trust and the Shares; or
(vi) VI. Any valuations of securities securities, other assets, or net asset value the Net Asset Value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Wilshire wShares Enhanced Gold Trust)
Standard of Care; Indemnification. (a) Except In performing its duties under the Loan Documents, the Administrative Agent will exercise the same degree of care as otherwise GECC normally exercises in connection with real estate loans in which no syndication or participation are involved, but the Administrative Agent shall have no further responsibility to any Lender except as expressly provided herein, BNY shall not be liable herein and except for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s its own gross negligence or willful misconduct. In misconduct which resulted in actual loss to such Lender, and, except to such extent, the Administrative Agent shall have no event shall BNY be liable responsibility to any Fund or Lender for the failure by the Administrative Agent to comply with any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility Administrative Agent's obligations to the Borrowers under the Loan Documents or otherwise. The Lenders agree to indemnify the Administrative Agent (to the extent not reimbursed under SECTION 11.05, but without limiting the obligations of such damages and regardless any Borrower under SECTION 11.05) ratably in accordance with the aggregate principal amount of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished Loans held by the FundLenders (or, or if no Loans are at the time outstanding, ratably in accordance with their respective Commitments), for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costsliabilities, expensesobligations, losses, damages, liabilities penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and claims nature whatsoever that may be imposed on, incurred by or asserted against the Administrative Agent (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained any Lender) arising out of or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY investigation in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, way relating to or arising out of transactions this Agreement or any other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities Loan Document or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or documents contemplated by or on behalf of a Fund;
referred to herein or therein or the transactions contemplated hereby or thereby (ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, the costs and expenses that any duty Borrower is obligated to pay under SECTION 11.05, but excluding, unless a Event of Default has occurred and is continuing, normal administrative costs and expenses incident to the performance of its agency duties hereunder) or obligation to determine, or advise or notify the Fund of: (a) the taxable nature enforcement of any distribution of the terms hereof or amount received thereof or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actionssuch other documents, class actionsPROVIDED, tax reclaimsTHAT, tax refunds, or similar events; (c) the taxable nature or taxable amount of no Lender shall be liable for any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect theretoforegoing to the extent they arise from the Administrative Agent's breach of its standard of care set forth in the first sentence of this Section.
Appears in 1 contract
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In in no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for ft)r any loss, damage or expense, including counsel fees and other costs Costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s ’ s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be he asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY in good faith pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be he taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) In any case a Fund is asked to indemnify or hold BNY harmless, BNY shall promptly advise a Fund of the pertinent facts concerning the situation in question, and will use reasonable care to notify a Fund promptly concerning any situation which appears likely to present the potential for a claim for indemnification. If it is finally determined by a court of competent jurisdiction that BNY was not entitled to indemnification (e.g. due to its gross negligence or willful misconduct) it must repay advances or other expenses paid by a Fund. A Fund shall be entitled to participate at its own defense or, if it so elects, to assume the defense of any suit brought to enforce any claims subject to this indemnification provision. If a Fund elects to assume the defense of any such claim, the defense shall be conducted by counsel chosen by the Trust and approved by BNY, whose approval shall not be unreasonably withheld. If a Fund elects to assume the defense of any claim and retains counsel, BNY shall bear the fees and expenses of any additional counsel retained by it. If a Fund does not elect to assume the defense of a claim, it will reimburse BNY for the fees and expense of any counsel it retains. None of the parties hereto shall settle or compromise any action, suit, proceeding or claim if such settlement or compromise provides for admission of liability on the part of the indemnified party without such indemnified party’s written consent.
(d) Actions taken or omitted in reliance on oral or written instructions given by persons duly authorized, or reasonably believed by BNY to be duly authorized, by the board of each Fund to give oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY I3NY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(de) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (U.S. One Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconductwilful misconduct or that of its employees or its breach of any of its representations. In no event shall BNY be liable to any Fund the Trust or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealedthen in effect, (ii) such Fundthe Trust’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fundthe Trust, or (iv) any opinion of legal counsel for such Fund the Trust or BNY, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no Fund the Trust shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in The reliance on or use by BNY on records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fundthe Trust;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise Trust without gross negligence or willful misconduct;
(iii) Any action taken The breach of any representation or omitted to be taken by BNY in good faith in accordance with warranty of the advice or opinion of counsel for a Fund or its own counsel;Trust hereunder; or
(iv) Any improper use by a Fund The offer or its agents, distributor or investment advisor sale of shares in violation of any valuations requirement under the federal securities laws or computations supplied regulations or the securities laws or regulations of any state that such shares be registered in such state or in violation of any stop order or other determination or ruling by any federal agency or any state with respect to the offer or sale of such shares in such state, except to the extent that such loss, claim damage or liability is caused by or contained in any information furnished in writing to the Trust by BNY pursuant to this Agreement;expressly for use in connection with such offer or sale of shares.
(v) The method of valuation of the securities and the method of computing each Series’ the Fund’s net asset valuevalue however this indemnity shall exclude errors in the actual calculation of the net asset value attributable to BNY; or
(vi) Any valuations of securities or net asset value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund Trust of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a the Fund; (b) the taxable nature or effect on a the Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a the Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(e) The terms of this Section shall survive the termination of this agreement.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Yyy Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fundthe Funds, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconductmisconduct or that of its employees or its breach of any of its representations. In no event shall BNY be liable to any Fund the Trust or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund The Funds shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Funds), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealedthen in effect, (ii) such Fundthe Trust’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fundthe Trust, or (iv) any opinion of legal counsel for such Fund or BNYthe Trust, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no Fund the Trust shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a), and further provided that legal counsel for the Trust shall be under no obligation to provide legal advice to BNY concerning any matter. This indemnity shall be a continuing obligation of each Fundthe Funds, its their successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Funds shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors The reliance in good faith on or use by BNY on records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fundthe Trust;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise Trust without gross negligence or willful misconduct;
(iii) Any action taken The material breach of any representation or omitted to be taken by BNY in good faith in accordance with warranty of the advice or opinion of counsel for a Fund or its own counselTrust hereunder;
(iv) Any improper use by a Fund The offer or its agents, distributor or investment advisor sale of shares in violation of any valuations requirement under the federal securities laws or computations supplied regulations or the securities laws or regulations of any state that such shares be registered in such state or in violation of any stop order or other determination or ruling by any federal agency or any state with respect to the offer or sale of such shares in such state, except to the extent that such loss, claim damage or liability is caused by or contained in any information furnished in writing to the Trust by BNY pursuant to this Agreement;
(v) The method expressly for use in connection with such offer or sale of valuation of the securities and the method of computing each Series’ net asset valueshares; or
(viv) Any valuations of securities or net asset value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund Trust of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fundthe Funds; (b) the taxable nature or effect on a Fund the Funds or its their shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a the Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(e) In the event a claim is asserted against the Fund arising out of or in connection with any action or inaction by BNY in performing its duties in accordance with the standard of care set forth hereunder (a “Claim”), and to the extent the Fund asserts and is successful in a related claim against BNY in which it is determined by a court or an arbiter of competent jurisdiction that BNY failed to discharge its duties in accordance with the standard of care set forth hereunder, then BNY shall indemnify the Fund for any and all costs, expenses, direct damages, liabilities or claims (including attorneys’ and accountants’ fees) sustained or incurred as a result of such claim.
(f) The terms of this Section shall survive the termination of this agreement.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Bear Stearns Active Etf Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including reasonable attorneys’ and accountants’ feesfees related thereto) (“Losses”) incurred by a Fundor asserted against the Funds, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross negligence negligence, bad faith, willful misconduct or willful misconductreckless disregard of its obligations under this Agreement. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s controlFunds, unless such loss, damage or expense arises out of the gross negligence or BNY Mellon’s own negligence, bad faith, willful misconduct or reckless disregard of BNYits obligations under this Agreement.
(b) Each Fund The Funds shall indemnify and hold harmless BNY Mellon from and against any and all costs, expenses, damages, liabilities and claims Losses (including those arising from claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, the Funds) which are sustained or incurred or which may be asserted against BNYBNY Mellon, by reason of or as a result of any action taken or omitted to be taken by BNY Mellon without negligence, bad faith, willful misconduct, reckless disregard of its obligations under this Agreement or in good faith hereunder breach of its representations and warranties at Section 3 above, or in reliance upon (i) any law, act, regulation the Funds’ Offering Materials or interpretation of the same even though the same may thereafter have been altered, changed, amended Documents (excluding information provided by BNY Mellon) or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this AgreementInstructions by and Authorized Person; provided, that no Fund the Funds shall not indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Funds shall indemnify BNY Mellon against and save hold BNY Mellon harmless from any loss, damage or expense, including reasonable counsel fees and other reasonable costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fundthe Funds;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon pursuant to written or oral instructions Instructions of the Fund Funds or otherwise without gross negligence negligence, bad faith, willful misconduct or willful misconductreckless disregard of its obligations under this Agreement;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) III. Any improper use by a Fund the Funds or its their agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) IV. The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) V. Any valuations of securities securities, other assets, or the net asset value provided by a Fundthe Funds.
(c) Actions taken or omitted in reasonable reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faithfrom an Authorized Person.
(d) Notwithstanding BNY Mellon agrees to indemnify the Funds and hold the Funds harmless from and against any other provision contained in and all Losses sustained or incurred by or asserted against the Funds and determined by an arbiter of appropriate jurisdiction to be a direct result of BNY Mellon’s negligence, bad faith, willful misconduct or reckless disregard of its obligations under this Agreement, including reasonable fees and expenses of counsel incurred by the Funds in a successful defense of claims by BNY Mellon; provided however, that BNY Mellon shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify not indemnify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws Funds for those Losses arising out of the Fund making Funds’ own negligence, bad faith, willful misconduct or not making any distribution or dividend paymentreckless disregard of its obligations under this Agreement. This indemnity shall be a continuing obligation of BNY Mellon, or any election with respect theretoits successors and assigns, notwithstanding the termination of this Agreement.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Ark ETF Trust)
Standard of Care; Indemnification. (a) Except None of the Managing Member (including, without limitation, in its capacity as otherwise provided herein, BNY the Administrator) or its Affiliates (each an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member, or (iii) any losses due to the actions or omissions of any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this Agreement, even if previously informed of Agreement by any Member) the possibility of such damages and regardless of the form of action. BNY shall not be liable Company will periodically reimburse any Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence or willful misconduct Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of BNYthe Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by law.
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, fraud, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ Fund’s net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Emerge ETF Trust)
Standard of Care; Indemnification. (a) In performing all of its duties and obligations hereunder, BNY Mellon shall exercise the standard of care and diligence that a professional service provider would observe in the provision of the services rendered pursuant to this Agreement. Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any and all costs, expenses, losses, charges, damages, liabilities or claims (claims, including reasonable and documented attorneys’ and accountants’ fees) fees and expenses (collectively, “Losses”), incurred by a Fundor asserted against the Trust, except those costs, expenses, damages, liabilities or claims Losses arising out of BNYBNY Mellon’s own gross negligence negligence, bad faith or willful misconduct. In no event shall the Trust, BNY Mellon or any BNY Mellon Affiliate be liable to for any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liabilityLosses, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, unless such Losses arise out of the bad faith, gross negligence or willful misconduct of BNY Mellon, nor shall BNY Mellon be liable for any Losses for delays caused by circumstances beyond BNY’s controlthe reasonable control of BNY Mellon or any agent of BNY Mellon and which adversely affect the performance by BNY Mellon of its obligations and duties hereunder or by any other agent of BNY Mellon, unless including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. Upon the occurrence of any such loss, damage delay or expense arises out of failure the gross negligence or willful misconduct of BNYBank shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances.
(b) Each Fund shall The Trust agrees to indemnify BNY Mellon and any BNYM Affiliate (the “Indemnitees”) and agrees to hold the Indemnitees harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are Losses sustained or incurred by or which may be asserted against BNY, an Indemnitee by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder any Indemnitee or otherwise or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any written opinion of legal counsel for such Fund the Trust or BNYBNY Mellon, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; providedprovided however, that no Fund the Trust shall not indemnify BNY any Indemnitee for costsany Losses arising out of such Indemnitee’s own bad faith, expenses, damages, liabilities gross negligence or claims for which BNY is liable under preceding 7(a)willful misconduct in the performance of this Agreement. This indemnity shall be a continuing obligation of each Fundthe Trust, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Trust shall indemnify BNY the Indemnitees against and save BNY the Indemnitees harmless from any loss, damage or expense, including reasonable and documented counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or Mellon by or on behalf of a Fundthe Trust;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Trust or otherwise without gross negligence negligence, bad faith or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the written advice or opinion of counsel for a Fund the Trust or its own counsel, provided that such written advice or opinion of counsel is obtained in accordance with Section 5(h);
(iv) IV. Any improper use by a Fund the Trust or its agents, distributor or investment advisor Sponsor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valuethe Net Asset Value of the Trust and the Shares; or
(vi) VI. Any valuations of securities securities, other assets, or net asset value the Net Asset Value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Wilshire wShares Enhanced Gold Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall indemnify the Fund against direct money damages arising out of BNY’s own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(g) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own outside counsel;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a to the Fund; (b) the taxable nature or effect on a the Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a the Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Powershares Exchange Traded Fund Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided hereina. Subject to the requirements of ERISA with respect to Loans involving "plan assets" within the meaning of ERISA, BNY PWI shall not be liable for any costs, expenses, damages, liabilities loss or claims (including attorneys’ and accountants’ fees) damage suffered or incurred by any Client in connection with any Loan or the administration and operation of PWI's securities lending program, whether or not resulting from any act or omission to act hereunder or otherwise, unless and except to the extent such loss or damage has been determined by a Fund, except those costs, expenses, damages, liabilities final judgment or claims arising order of a court of competent jurisdiction to have arisen out of BNY’s PWl's own gross negligence or willful misconduct. In no event Notwithstanding anything in this Agreement to the contrary, PWI shall BNY not be liable to any Fund Client for any consequential, special or any third party for special, indirect losses or consequential damagesdamages which the Client may incur or suffer by or as a consequence of PWI's performance of, or lost profits failure to perform, the services to be provided hereunder, whether or loss of business, arising under or in connection with this Agreement, even if previously informed of not the possibility likelihood of such losses or damages and regardless of was known by PWI, nor shall PWI be liable for any losses or damages resulting from PWI's having complied with the form of action. BNY Investment Guidelines or with any other directions from, or requirements of, the Client.
b. PWI shall not be liable to any Client for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against investment losses with respect to cash Collateral that comply with the Collateral Guidelines. Each Client authorizes PWI to charge the Client Account for any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished amounts payable by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYClient pursuant to this Section 8(b).
(b) Each Fund c. Client shall indemnify PWI and hold it harmless BNY from and against any and all costsliability, expensesloss, damagesdamages and claims, liabilities including attorneys' fees and claims (including claims asserted by a Fund)all other expenses reasonably incurred in its defense, and reasonable attorneys’ and accountants’ fees relating thereto, to which are sustained or incurred or which may PWI shall be asserted against BNY, subjected by reason of its actions, or as a result of any action failure to act, in either case taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any lawpursuant to this Agreement, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior except that this indemnity shall not apply: to the commencement of this Agreement; provided, extent that no Fund shall indemnify BNY for costs, expenses, damages, liabilities PWI's actions or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless failure to act resulted from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross PWI's negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Securities Lending Agency Client Agreement (Westcore Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYthe Administrator’s own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY the Administrator from and and. against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, act or regulation or official interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such the Fund, or (iviii) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator’s own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY the Administrator to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith. In no event shall the Bank be required to accept or act upon any oral instructions; regardless of the circumstances.
(d) Notwithstanding In providing services hereunder the Administrator is authorized to utilize any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, vendor (including, without limitation, legal or regulatory compliance monitoring services) reasonably believed by the Administrator to be reliable to provide information. The Fund agrees that the Administrator shall not be liable for any duty loss, damages or obligation to determine, expense incurred as a result of the errors or advise or notify the Fund of: (a) the taxable nature omissions of any distribution or amount received or deemed received by, or payable to, a Fund; (b) vendor utilized by the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, Administrator or any election with respect theretopermitted delegee other than for the negligent selection of such vendor.
Appears in 1 contract
Samples: Administration Agreement (Ing Clarion Global Real Estate Income Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross bad faith, negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundProper Instructions, or for delays caused by circumstances beyond BNY’s 's control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such FundProper Instructions, or (iv) any opinion of legal counsel for such Fund or BNYFund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions Proper Instructions of the Fund or otherwise without gross bad faith, negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselFund;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counselFund, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect effect
on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (DB Commodity Index Tracking Master Fund)
Standard of Care; Indemnification. (a) Except In performing its duties under the Credit Documents, Administrative Agent will exercise the same degree of care as otherwise Administrative Agent normally exercises in connection with similar loans held for its own account, but Administrative Agent shall have no further responsibility to any Lender except as expressly provided herein, BNY shall not be liable herein and except for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s its own gross negligence or willful misconduct. In misconduct which resulted in actual loss to such Lender, and, except to such extent, Administrative Agent shall have no event shall BNY be liable responsibility to any Fund Lender for the failure by Administrative Agent to comply with any of Administrative Agent’s obligations to Borrower under the Credit Documents or otherwise. The Lenders agree to indemnify Administrative Agent (to the extent not reimbursed under Sections 10.5 or 10.11, but without limiting the obligations of Borrower under Sections 10.5 or 10.11) ratably in accordance with each Lender’s Proportionate Share, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Administrative Agent (including by any Lender) arising out of or by reason of any investigation in or in any way relating to or arising out of this Agreement or any third party for specialother Credit Document or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby (including the costs and expenses that Borrower is obligated to pay under Section 10.11, indirect but excluding, unless an Event of Default is in existence, normal administrative costs and expenses incident to the performance of its agency duties hereunder) or consequential damages, or lost profits or loss the enforcement of business, arising under or in connection with this Agreement, even if previously informed any of the possibility terms hereof or thereof or of any such damages and regardless of the form of action. BNY other documents, provided that no Lender shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior foregoing to the commencement extent they arise from Administrative Agent’s breach of its standard of care set forth in the first sentence of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a FundSection.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Credit and Security Agreement (Ares Commercial Real Estate Corp)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. Except with respect to its indemnity obligations hereunder, in no other event will a Fund be liable to BNY Mellon or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by XXX Xxxxxx or any BNY in good faith hereunder Mellon Affiliate without bad faith, gross negligence or willful misconduct, or in commercially reasonable reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this AgreementAgreement with respect to such Fund. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a the Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counsel;
(iv) IV. Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valueNet Asset Value; orand
(vi) VI. Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its BNY Mellon’s own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained BNY Mellon shall indemnify and hold harmless the Fund from and against all costs, expenses, damages, liabilities and claims (including claims asserted by BNY Mellon), and reasonable attorneys’ and accountants’ fees relating thereto, relating to or arising out of BNY Mellon’s bad faith, gross negligence or willful misconduct in the performance of its obligations under this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Oneamerica Funds Inc)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a FundTrust, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund Trust or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund Trust shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a FundTrust), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such FundTrust’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund Trust or BNYBNY Mellon, or arising out of transactions or other activities of such Fund Trust which occurred prior to the commencement of this Agreement; provided, that no Fund Trust shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each FundTrust, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund Trust shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a FundTrust;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Trust or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund Trust or its own counsel;
(iv) IV. Any improper use by a Fund Trust or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a FundTrust.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Elkhorn ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such the Fund, or (iv) any opinion of legal counsel for such the Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of from an officer of such Fund, Authorized Person or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own outside counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY in good faith to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (SPA ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise expressly provided herein, BNY BISYS shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by BNY or a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s BISYS's own bad faith, gross negligence or willful misconduct. In no event shall BNY BISYS be liable to BNY or any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund BNY shall indemnify and hold harmless BNY BISYS from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYBISYS, by reason of or as a result of any action taken or omitted to be taken by BNY BISYS in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such a Fund’s 's Registration Statement or Prospectus, (iii) any instructions of BNY or an officer of such Fundthe Company, or (iv) any opinion of legal counsel for such a Fund or BNYBISYS, or arising out of transactions or other activities of such a Fund which occurred prior to the commencement of this Agreement; provided, that no Fund BNY shall not indemnify BNY BISYS for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of BISYS's own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each FundBNY, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY BISYS to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding BISYS shall indemnify, defend, and hold BNY, and its directors, officers, agents and nominees harmless from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund) and reasonable attorneys' and accountants' fees relating thereto, resulting directly and proximately from BISYS' willful misfeasance, bad faith or gross negligence in the performance of, or the reckless disregard of, its duties or obligations hereunder.
(e) In order that the indemnification provisions contained herein shall apply, if in any case a party may be asked to indemnify or hold the other provision contained party harmless, the indemnifying party shall be fully and promptly advised in writing of all pertinent facts concerning the situation in question. As to any matter eligible for indemnification, an indemnified party shall act reasonably and in accordance with good faith business judgment and shall not effect any settlement or confess judgment without the consent of the indemnifying party, which consent shall not be withheld or delayed unreasonably.
(f) The indemnifying party shall be entitled to participate at its own expense or, if it so elects, to assume the defense of any suit brought to enforce any claims subject to this indemnity provision. If the indemnifying party elects to assume the defense of any such claim, the defense shall be conducted by counsel chosen by it and reasonably satisfactory to the indemnified party. In the event that the indemnifying party elects to assume the defense of any suit and retain counsel, the indemnified party shall bear the fees and expenses of any additional counsel retained by it. An indemnifying party shall not effect any settlement without the consent of the indemnified party (which shall not be withheld or delayed unreasonably by the indemnified party) unless such settlement imposes no liability, responsibility or other obligation upon the indemnified party and relieves it of all fault. If the indemnifying party does not elect to assume the defense of suit, it will reimburse the indemnified party for the reasonable fees and expenses of any counsel retained by the indemnified party. The indemnity and defense provisions set forth herein shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Sub Administration Agreement (Bny Hamilton Funds Inc)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fundor asserted against the Trust, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund the Trust or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund The Trust shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Trust), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, fraud or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund the Trust or BNYBNY Mellon, or arising out of transactions or other activities of such Fund the Trust which occurred prior to the commencement of this Agreement; provided, that no Fund the Trust shall not indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fundthe Trust, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund the Trust shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors I. Material errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fundthe Trust;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund Trust or otherwise without gross negligence negligence, fraud or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own counsel;
(iv) IV. Any improper use by a Fund the Trust or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fundthe Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith, which presumption may be rebutted by evidence.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Bitwise Funds Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by the Trust, on behalf of a FundSeries, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund the Trust or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but for as provided herein, BNY shall be liable to the Trust for direct money damages caused by BNY’s own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund The Trust, on behalf of each Series, shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by the Trust, on behalf of a FundSeries), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such FundSeries’s Registration Statement or Prospectus, (iii) any instructions of an officer of the Trust, on behalf of such FundSeries, or (iv) any opinion of legal counsel for such Fund Series or BNY, or arising out of transactions or other activities of such Fund Series which occurred prior to the commencement of this Agreement; provided, that no Fund Series or the Trust shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each FundSeries, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, the Trust, on behalf of each Fund Series, shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a FundSeries;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund Trust or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own counsel, provided, that, BNY provides notice to the Trust, on behalf of the applicable Series, of such counsel’s advice;
(iv) Any improper use by a Fund Series or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;; or
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundthe adviser or sub-adviser or any other agent of the Trust.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Destra Investment Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable not exculpated under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Cullen Funds Trust)
Standard of Care; Indemnification. (a) Except The Sub-Administrator acknowledges that the performance of this Agreement is for the benefit of the Series, that the Sub-Administrator shall be directly liable and responsible to the Series and to the Administrator for the performance of its obligations hereunder, and that either the Series (or the Corporation on behalf of the Series) or the Administrator may therefore enforce in its own name and for itself such liability and responsibility against the Sub-Administrator; provided that, except as otherwise provided herein, BNY the Sub-Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a FundSeries, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Sub-Administrator's own gross bad faith, negligence or willful wilful misconduct. In no event shall BNY the Sub-Administrator be liable to any Fund Series, the Administrator, or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund To the extent that the Administrator is indemnified and held harmless by one or more of the Series, the Administrator shall indemnify and hold harmless BNY the Sub-Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a FundSeries), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Sub-Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Sub-Administrator in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealedsame, (ii) such Fund’s the Registration Statement or ProspectusProspectus of any Series, (iii) any instructions of an officer of such Fundthe Administrator or of a Series, or (iv) any opinion of legal counsel for such Fund a Series, the Administrator or BNYthe Sub-Administrator, or arising out of transactions or other activities of such Fund any Series which occurred prior to the commencement of to this Agreement; provided, provided that no Fund the Administrator shall not indemnify BNY the Sub-Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Sub-Administrator's own negligence, bad faith or wilful misconduct. This indemnity sub-paragraph shall be a continuing obligation of each Fundthe Administrator, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Sub-Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund Series, the Administrator or its own counselthe Sub-Administrator, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Sub Administration Agreement (Bny Hamilton Funds Inc)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ Fund’s net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund Fund, the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding Subject to the limitations of liability set forth in Section 10(a) above, each Fund shall not be responsible for, and BNY Mellon shall indemnify and hold each Fund harmless from and against, any other provision contained in and all direct costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, directly arising out of BNY Mellon’s bad faith, gross negligence, or willful misconduct.
(e) The terms of this Section 10 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Precidian ETFs Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundProper Instructions, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundProper Instructions, or (iv) any opinion of legal counsel for such Fund or BNYFund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions Proper Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (DB Commodity Index Tracking Master Fund)
Standard of Care; Indemnification. (a) BNY shall act in good faith in carrying out its duties hereunder. Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence negligence, bad faith or willful misconductwilful misconduct or reckless disregard for its duties and obligations hereunder. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence negligence, bad faith or willful misconduct of BNYBNY or reckless disregard for its duties and obligations hereunder.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund; provided however that if BNY after making a good faith effort to seek guidance from Fund or counsel does not receive the required guidance in a reasonable period of time, then BNY may seek and rely on the advice of counsel to BNY, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund’s approval,, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party as described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund’s approval, subject to the limitations set forth above;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities Securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities Securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, subject to the limitations set forth herein, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (HealthShares (TM) Inc.)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a FundFT Services, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence bad faith, negligence, willful misconduct or willful misconductreckless disregard of its duties hereunder. In no event shall either BNY or FT Services be liable to any Fund the other party or to any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundFT Services, or for delays caused by circumstances beyond BNY’s controlcontrol (provided BNY maintains a commercially reasonable Disaster Recovery Plan and Back-Up System), unless such loss, damage or expense arises out of the gross negligence or BNY’s bad faith, negligence, willful misconduct or reckless disregard of BNYits duties.
(b) Each Fund FT Services shall indemnify and hold harmless BNY from and against any and all third party costs, expenses, damages, liabilities and claims (including claims asserted by a Fund)claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY by a third party, (x) by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or hereunder; (y) in reasonable reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, ; (ii) such Fund’s Registration Statement or Prospectus, ; (iii) any instructions of an officer Authorized Person of such Fund, FT Services; or (iv) any opinion of legal counsel for such Fund FT Services or BNY, ; or (z) arising out of transactions or other activities of such Fund which FT Services that occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each FundFT Services, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund FT Services shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described in (iii) and (iv) above or by or on behalf of a FundFT Services;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions from an Authorized Person by or on behalf of the Fund or otherwise without gross negligence or willful misconductFT Services;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselof FT Services;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor FT Services of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the a Fund’s portfolio securities and the method of computing each Series’ net asset valueFund’s NAV; provided that such valuation or computation conforms to the Fund’s then-effective Prospectus and valuation procedures actually provided to BNY; or
(vi) Any valuations of a Fund’s portfolio securities or net asset value NAV provided to BNY by a FundFT Services.
(c) FT Services and the Funds shall not be responsible for, and BNY shall indemnify and hold FT Services and the Funds harmless from and against, any and all third party costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred by FT Services and finally determined by an arbiter of appropriate jurisdiction as a result of BNY’s bad faith, negligence, willful misconduct or reckless disregard of its duties hereunder.
(d) In order that the indemnification provisions contained in this Section 8 shall apply, upon the assertion of a claim for which one party may be required to indemnify the other party, the indemnified party shall promptly notify the indemnifying party of such assertion, and shall keep the indemnifying party advised with respect to all developments concerning such claim. The indemnifying party shall have the option to participate with the indemnified party in the defense of such claim or to defend against said claim in its own name or in the name of the indemnified party. The indemnified party shall in no case confess any claim or make any compromise in any case in which the indemnifying party may be required to indemnify the indemnified party except with the indemnifying party’s prior written consent. In no event will FT Services or the Funds be liable for any settlement of any action or claim effected without their prior written consent.
(e) Actions taken or omitted in good faith reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund FT Services or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(df) Notwithstanding any other provision contained in The terms of this Section 8 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Subcontract for Fund Administration and Accounting Services (Franklin ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross bad faith, negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 8(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising directly from any one or more of the following:
(i) : I Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) ; II Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) ; III Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Infusive US Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fundthe Trusts , or the Trusts on behalf of each of their corresponding Funds, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to the Trusts or to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundProper Instructions, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund Subject to the limitations set forth in Section 7 below, the Trust, the Master Trust and/or each Fund, as applicable, shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by the Trusts or a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundProper Instructions, or (iv) any opinion of legal counsel for such Fund or BNYeach Fund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no neither the Trust, Master Trust or any Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(aSection 6(a). This indemnity shall be a continuing obligation of each the Trusts and each Fund, its their respective successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, the Trust, the Master Trust and/or each Fund Fund, as applicable, shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions Proper Instructions of the Fund Trusts on behalf of their corresponding Funds or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for the Trusts or a Fund or its own counsel;
(iv) Any improper use by the Trusts or a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundthe Trusts on behalf of their corresponding Funds.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trusts on behalf of their corresponding Funds or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (PowerShares DB Multi-Sector Commodity Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a FundSeries, except those costs, expenses, damages, liabilities or claims arising out of BNY’s or BNY’s delegate or agent that is a subsidiary of The Bank of New York Mellon Corporation’s own gross negligence or willful misconductmisconduct or BNY’s failure to act in good faith. In no event shall BNY be liable to any Fund Series or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY, or BNY’s failure to act in good faith. For purposes of this provision, if as a result of the negligence or willful misconduct of BNY or that of its directors, officers or employees, agents or delegates, there is a material error in the net asset value per share of a Series, the material losses of a Series on the sale and issuance, or the redemption, of its shares attributable to such material error shall be direct money damages.
(b) Each The Fund shall indemnify and hold harmless BNY on behalf of a Series from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Fund on behalf of the Series), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred by or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY (i) in good faith hereunder or on behalf of the Series; (ii) in reasonable reliance as the same is contemplated under this Agreement upon (i) any law, act, regulation or interpretation of the same even though same; or (iii) in good faith reliance as the same may thereafter have been alteredis contemplated under this Agreement and in the absence of manifest error, changed, amended or repealed, (ii) such upon the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such the Fund, or (iv) any opinion of legal counsel for such the Fund or BNYBNY pursuant to Section 4(i) of this Agreement, or arising out of transactions or other activities of such Fund the Series which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY on behalf of the Series for costs, expenses, damages, liabilities liabilities, claims or claims reasonable attorney’s fees relating thereto, which constitute indirect, special or consequential damages or lost profits, or for which BNY is or may be liable under preceding 7(a6(a), and further provided that legal counsel for the Fund shall be under no obligation to provide legal advice to BNY concerning any matter. This indemnity shall be a continuing obligation of each the Fund, its successors and assignsassigns on behalf of the Series, notwithstanding the termination of this Agreement. In the event a claim is asserted against the Series arising out of or in connection with any action or inaction by BNY in performing its duties in accordance with the standard of care set forth hereunder (a “Claim”), and to the extent the Fund asserts and is successful in a related claim against BNY on behalf of the Series in which it is determined by a court or arbiter of competent jurisdiction that BNY failed to discharge its duties in accordance with the standard of care as set forth hereunder, then BNY shall indemnify the Fund for any and all costs, expenses, direct damages, liabilities or claims (including attorneys’ and accountants’ fees) sustained or incurred as a result of such Claim. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY on behalf of a Series against and save BNY harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the followingfollowing with respect to the Series:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or on by or on behalf of a Fundthe Fund or its designees;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or (if authorized by the Fund) oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counselcounsel pursuant to Section 4(i) of this Agreement ;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each the Series’ net asset valuevalue as set forth in the Registration Statement in effect at the time of such calculation and as provided to BNY, or as directed by the Series , consistent with paragraph 4(a); or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on written or (if authorized by the Fund) oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (AQR Funds)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY BNYM shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNYM’s own gross negligence or willful wilful misconduct. In no event shall BNY BNYM be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY BNYM shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNYM’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYBNYM.
(b) Each Fund shall indemnify and hold harmless BNY BNYM from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNYM, by reason of or as a result of any action taken or omitted to be taken by BNY BNYM in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYBNYM, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY BNYM for costs, expenses, damages, liabilities or claims for which BNY BNYM is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY BNYM against and save BNY BNYM harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY BNYM by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY BNYM pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY BNYM in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY BNYM pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY BNYM to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (IndexIQ Active ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own gross bad faith, negligence or willful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reasonable reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross negligence fraud, bad faith, negligence, willful misconduct or willful misconductreckless disregard in the performance of its obligations under this Agreement. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate without fraud, bad faith, negligence, willful misconduct or reckless disregard in good faith hereunder the performance of its obligations (including its obligations to satisfy its representations set forth in Section 3 above) under this Agreement, or in reliance upon (i) any law, act, regulation or reasonable interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this AgreementAgreement with respect to such Fund. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including reasonable counsel fees and other reasonable costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a the Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) II. Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) III. The method of valuation of the securities and the method of computing each Series’ net asset valueNet Asset Value; orand
(vi) IV. Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a the Fund.
(c) Subject to the limitations on liability and responsibility provided in this Agreement with respect to XXX Xxxxxx, XXX Xxxxxx shall indemnify and hold harmless each Fund from and against any and all costs, expenses, damages, liabilities and claims (including reasonable attorneys’ and accountants’ fees relating thereto) which are incurred by or asserted against the Fund arising out of BNY Mellon’s own fraud, negligence, willful misconduct, bad faith or reckless disregard in the performance of BNY Mellon’s obligations under this Agreement; provided, that the Fund shall not be entitled to indemnification with respect to matters arising out of the Fund’s own fraud, negligence, bad faith, willful misconduct or reckless disregard with respect to such matter.
(d) Actions taken or omitted in reasonable reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, from an Authorized Person shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Ark Venture Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action, but BNY shall indemnify the Fund against direct money damages arising out of BNY's own negligence or willful misconduct. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s 's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such the Fund or BNY, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above in 4(e) or by or on behalf of a Fund4(g) above;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a the Fund or its own outside counsel;
(iv) Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ ' net asset value; or
(vi) Any valuations of securities or net asset value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own outside counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a to the Fund; (b) the taxable nature or effect on a the Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a the Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Powershares Exchange Traded Fund Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundProper Instructions, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Subject to the limitations set forth in Section 7 below, each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fundthe Trust’s Registration Statement or Prospectus, (iii) any instructions of an officer of such FundProper Instructions, or (iv) any opinion of legal counsel for such Fund or BNYeach Fund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(aSection 6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions Proper Instructions of the a Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (DB Multi-Sector Commodity Master Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fundthe Company, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross the bad faith, negligence or willful misconductwilful misconduct of the Administrator in the performance of its obligations and duties under this Agreement. In no event shall BNY the Administrator be liable to any Fund the Company or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each Fund The Company shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fundthe Company), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s the Registration Statement or Prospectus, (iii) any instructions of an any officer of such Fundthe Company, or (iv) any opinion of legal counsel for such Fund the Company or BNYthe Administrator, or (v) arising out of transactions or other activities of such Fund the Company which occurred prior to the commencement of this Agreement; provided, that no Fund the Company shall not indemnify BNY the Administrator for those costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own negligence, bad faith or wilful misconduct. This indemnity shall be a continuing obligation of each Fundthe Company, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Company or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including reasonable attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence negligence, fraud or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, special or indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s reasonable control, unless such loss, damage or expense arises out of the gross negligence negligence, fraud or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all reasonable costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoingforegoing and absent BNY’s negligence, fraud or willful misconduct, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence negligence, fraud or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset valuevalue to the extent such methods were instructed by a Fund or its agents, directly or by way of its prospectus; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed in good faith by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (IndexIQ Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, act or regulation or official interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such the Fund, or (iv) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY the Administrator to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding . In no event shall the Bank be required to accept or act upon any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fundoral instructions; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws regardless of the Fund making or not making any distribution or dividend payment, or any election with respect theretocircumstances.
Appears in 1 contract
Samples: Administration Agreement (Ing Clarion Global Real Estate Income Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own bad faith, gross negligence or willful misconductmisconduct or reckless disregard of its duties hereunder. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the BNY's bad faith, gross negligence or willful misconduct or reckless disregard of BNYits duties.
(b) Each Fund severally and not jointly shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions Proper Instructions of an officer of such FundAuthorized Person, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund severally and not jointly shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the followingfollowing without BNY’s bad faith, or willful misconduct:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written Proper Instructions by or oral instructions on behalf of the Fund or otherwise without gross negligence or willful misconductFund;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for the Trust or by or on behalf of a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the Fund's portfolio securities and the method of computing each Series’ a Fund's net asset valuevalue provided that such valuation or computation conforms to the Fund's then effective prospectus and valuation procedures actually provided to BNY; or
(vi) Any valuations of the Fund's portfolio securities or net asset value provided to BNY by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructionsProper Instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in The terms of this Section 9 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Direxion Shares ETF Trust)
Standard of Care; Indemnification. (a) Except None of the Managing Member (including, without limitation, in its capacity as otherwise provided herein, BNY the Administrator) or its Affiliates (each an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member, or (iii) any losses due to the actions or omissions of any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any Person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this Agreement, even if previously informed of Agreement by any Member) the possibility of Company will periodically reimburse such damages and regardless of the form of action. BNY shall not be liable Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence Company and such Indemnified Person, as well as any relevant equitable considerations. The Company may purchase and maintain insurance on behalf of an Indemnified Person against any liability incurred by such person at the Company's expense. The reimbursement, indemnity and contribution obligations of the Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified person who has ceased to have an official capacity for acts or willful misconduct omissions during such official capacity or otherwise when acting at the request of BNYthe Managing Member, and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such indemnification would be in violation of applicable law (including ERISA), but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by applicable law (including ERISA).
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a or asserted against the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own gross bad faith, negligence or willful misconduct. XXX Xxxxxx’x maximum aggregate cumulative liability under this Agreement (including, without limitation, for all losses, claims, suits, controversies, breaches or damages of any nature), for any reason and upon any cause of action whatsoever, whether asserted by the Fund or any other person, and regardless of the form of action or legal theory (“Loss”), shall not exceed the total amount of fees actually received by BNY Mellon with respect to the services provided hereunder during the eighteen (18) calendar months immediately prior to the date of such Loss. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any the Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the gross bad faith, negligence or willful misconduct of BNYBNY Mellon.
(b) Each The Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, negligence or willful misconduct, or in reliance upon (i) any law, act, regulation or reasonable interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such the Fund or BNYBNY Mellon, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save hold BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a the Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counsel;
(iv) IV. Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valuethe Fund’s Net Asset Value; orand
(vi) VI. Any valuations of securities securities, other assets or net asset value the Net Asset Value provided by a the Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a the Fund or its BNY Mellon’s own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Polen Credit Opportunities Fund)
Standard of Care; Indemnification. (a) a. Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s the Administrator's own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) b. Each Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, act or regulation or official interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNYthe Administrator, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator's own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) c. Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding . In no event shall the Bank be required to accept or act upon any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fundoral instructions; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws regardless of the Fund making or not making any distribution or dividend payment, or any election with respect theretocircumstances.
Appears in 1 contract
Samples: Administration Agreement (Dreman Claymore Dividend & Income Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a or asserted against the Fund, except unless those costs, expenses, damages, liabilities or claims arising arose out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any the Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each The Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by XXX Xxxxxx or any BNY in good faith hereunder Mellon Affiliate without bad faith, gross negligence, willful misconduct or material breach of this Agreement, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such Fund, Instructions or (iv) any opinion of legal counsel for such Fund or BNYthe Fund, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each the Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party party, approved by the Fund or directed to be used by the Fund, described above or by or on behalf of a the Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence negligence, willful misconduct or willful misconductbad faith;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a the Fund or its own counsel;
(iv) IV. Any improper use by a the Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valueNet Asset Value, so long as such method was approved in advance by Authorized Person or provided in the Fund’s Offering Materials or Documents; orand
(vi) VI. Any valuations of securities or net asset value other assets so long as such valuation was approved by Authorized Person or provided by a in the Fund’s Offering materials or Documents.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed from an Authorized Person, received in accordance to be authorized to sign, countersign or execute the samethis Agreement, or upon the opinion of legal counsel for a Fund or its own counselthe Fund, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (StoneCastle Financial Corp.)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including reasonable attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence negligence, fraud or willful misconductmisconduct or that of its employees or its breach of any of its representations. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the FundTrust, or for delays caused by circumstances beyond BNY’s reasonable control, unless such loss, damage or expense arises out of the gross negligence negligence, fraud or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all reasonable costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fundthe Trust, or (iv) any opinion of legal counsel for such Fund the Trust or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund the Trust shall not indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a), and further provided that legal counsel for the Trust shall be under no obligation to provide legal advice to BNY concerning any matter. This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoingforegoing and absent BNY’s negligence, fraud or willful misconduct, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence negligence, fraud or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund the Trust or its own counselBNY;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ Fund’s intraday indicative value or net asset valuevalue to the extent such methods were instructed by a Fund or its agents, directly or by way of its Prospectus; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed in good faith by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund Trust of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the a Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (IndexIQ Active ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ ' and accountants’ ' fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s 's own gross negligence or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s the Bank's control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNYthe Bank.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ ' and accountants’ ' fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or proper interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s 's Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; providedPROVIDED, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoingforegoing (and subject to the proviso at the end of the first sentence of in this Section 6(b)), each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY the Bank by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use in violation of applicable laws by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ ' net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons reasonably believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Baillie Gifford Funds)
Standard of Care; Indemnification. (a) Except None of the Managing Member (including, without limitation, in its capacity as otherwise provided herein, BNY the Administrator) or its Affiliates (each an "Indemnified Person" and collectively the "Indemnified Persons") shall not be liable to the Company or to the Members for (i) any act or omission performed or failed to be performed by such person (other than any criminal wrongdoing), or for any losses, claims, costs, expenses, damages, or liabilities arising therefrom, in the absence of any criminal wrongdoing, willful misfeasance or claims gross negligence on the part of such person, (ii) any tax liability imposed on the Company or any Member, or (iii) any losses due to the actions or omissions of any brokers or other agents of the Company. In the event that any Indemnified Person becomes involved in any capacity in any action, proceeding or investigation brought by or against any person (including attorneys’ and accountants’ feesany Non-Managing Member) incurred by a Fund, except those costs, expenses, damages, liabilities or claims in connection with any matter arising out of BNY’s own gross negligence or willful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with the Company's business or affairs (including a breach of this AgreementAgreement by any Member), even if previously informed of the possibility of Company will periodically reimburse such damages and regardless of the form of action. BNY shall not be liable Indemnified Person for any loss, damage or expense, including counsel fees its legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses of paid to it if it shall ultimately be determined by a defense court having appropriate jurisdiction in a decision that is not subject to appeal, that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by applicable law, the Company shall also indemnify any Indemnified Person, jointly and severally, against any claim losses, claims, costs, damages or liability, resulting from, liabilities to which such Indemnified Person may become subject in connection with any matter arising out of, of or in connection with its performance hereunderthe Company's business or affairs, including its actions or omissions, except to the incompleteness or inaccuracy of extent that any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage claim, cost, damage, or expense arises out liability results solely from the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person. If for any reason (other than the willful misfeasance, bad faith or gross negligence of, or any criminal wrongdoing by, such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Person as a result of such loss, claim, cost, damage, or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the gross negligence Company and such Indemnified Person, as well as any relevant equitable considerations. The Company may purchase and maintain insurance on behalf of an Indemnified Person against any liability incurred by such person at the Company's expense. The reimbursement, indemnity and contribution obligations of the Company under this Section 2.06 shall be in addition to any liability which the Company may otherwise have, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or willful misconduct omissions during such official capacity or otherwise when acting at the request of BNYthe Managing Member, and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, the Managing Member and any other Indemnified Person. The foregoing provisions shall survive any termination of this Agreement.
(b) Each Fund The reimbursement, indemnification and contribution rights provided by this Section 2.06 shall indemnify and hold harmless BNY from and against not be deemed to be exclusive of any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, other rights to which are sustained or incurred or which the Indemnified Person may be asserted against BNY, by reason of entitled under any agreement or as a result matter of law, or otherwise, both as to action in an Indemnified Person's official capacity and to action in any other capacity, and shall continue as to an Indemnified Person who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Managing Member and shall inure to the benefit of the successors, assigns, heirs and personal representatives of such Indemnified Person.
(c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed as to relieve (or attempt to relieve) from liability or to provide for the indemnification of any Indemnified Person for any liability (including liability under federal securities law which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such indemnification would be in violation of applicable law (including ERISA), but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by applicable law (including ERISA).
(d) The Managing Member shall have power to purchase and maintain insurance on behalf of the Managing Member and the Indemnified Persons at the expense of the Company against any liability asserted against or incurred by them in any such capacity or arising out of the Managing Member's status as such, whether or not the Company would have the power to indemnify the Indemnified Persons against such liability under the provisions of this Agreement.
(e) An Indemnified Person may rely upon and shall be protected in acting or refraining from action upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond debenture, or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) An Indemnified Person may consult with counsel, accountants and other experts reasonably selected by it, and any opinion of an independent counsel, accountant or expert retained with reasonable care shall be full and complete protection in respect of any action taken or suffered or omitted to be taken by BNY the Indemnified Person hereunder in good faith and in accordance with such opinion.
(g) The Managing Member may execute any of the trusts or powers hereunder or in reliance upon (i) perform any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above duties hereunder either directly or by or through agents or attorneys, and the Managing Member shall not be responsible for any misconduct or negligence on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor part of any valuations agent or computations supplied attorney appointed with reasonable care by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fundit hereunder.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Goldman Sachs Hedge Fund Partners Ii LLC)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY BNYM shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a FundAtlantic, except those costs, expenses, damages, liabilities or claims arising out of BNYBNYM’s own gross negligence bad faith, negligence, wilful misconduct or willful misconductreckless disregard of its duties hereunder. In no event shall BNY BNYM be liable to any Fund Atlantic or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY BNYM shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNYM’s control, unless such loss, damage or expense arises out of the gross negligence or BNYM’s bad faith, negligence, willful misconduct or reckless disregard of BNYits duties hereunder.
(b) Each Fund of Atlantic and the Fund, jointly and severally, shall indemnify and hold harmless BNY BNYM from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Atlantic or the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNYM, by reason of or as a result of any action taken or omitted to be taken by BNY BNYM in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or ProspectusProspectuses, (iii) any instructions of an officer of such FundAtlantic or its officers, or (iv) any opinion of outside legal counsel for BNYM or, to the extent BNYM has consulted with counsel to the Fund in accordance with 4(j), such Fund or BNYcounsel to the Fund, or arising out of transactions or other activities of such the Fund or applicable Series which occurred prior to the commencement of this Agreement; provided, that no Fund Atlantic shall not indemnify BNY BNYM for costs, expenses, damages, liabilities or claims for which BNY BNYM is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Atlantic and the Fund, its their respective successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund Atlantic and the Fund, jointly and severally, shall indemnify BNY BNYM against and save BNY BNYM harmless from any loss, damage or expense, including counsel reasonable attorneys’ fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY BNYM by any third party described above or by or on behalf of a FundAtlantic;
(ii) Action or inaction taken or omitted to be taken by BNY BNYM pursuant to written or oral instructions of the Fund Atlantic or otherwise without gross negligence negligence, willful misconduct or willful misconductreckless disregard of its duties hereunder;
(iii) Any action taken or omitted to be taken by BNY BNYM in good faith in accordance with the advice or opinion of its own external counsel for a or, with approval by Atlantic, counsel to the Fund or its own counselapplicable Series;
(iv) Any improper use by a Fund Atlantic or its agents, distributor or investment advisor agents of any valuations or computations supplied by BNY BNYM pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; provided that such valuation or computation conforms to the Series’ then effective prospectus, directions from Atlantic or the Fund and/or the valuation procedures actually provided to BNYM; or
(vi) Any valuations of securities or net asset value provided by a FundAtlantic.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY BNYM to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund Atlantic of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a FundSeries; (b) the taxable nature or effect on a Fund Series or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund Series to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund a series making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Subadministration Services Agreement (Forum ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon, any BNY Mellon Affiliate or the Trust be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBXX Xxxxxx xx xxx XXX Xxxxxx Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, gross negligence, or willful misconduct, or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYFund, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 10(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or Mellon by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund or its own counselFund;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) VI. Any valuations of securities securities, other assets, or the net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding Subject to the limitations of liability set forth in Section 10(a) above, each Fund shall not be responsible for, and BNY Mellon shall indemnify and hold each Fund harmless from and against, any other provision contained in and all costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, directly arising out of BNY Mellon’s bad faith, gross negligence, or willful misconduct.
(e) The terms of this Section 10 shall survive the termination of this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (BNY Mellon ETF Trust)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by or asserted against a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYBNY Mellon’s own bad faith, gross negligence or willful misconduct. In no event shall BNY Mellon or any BNY Mellon Affiliate be liable to any Fund or any third party for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY Mellon and any BNY Mellon Affiliate shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNYBNY Mellon’s reasonable control, unless such loss, damage or expense arises out of the bad faith, gross negligence or willful misconduct of BNYBNY Mellon.
(b) Each Fund shall indemnify and hold harmless BNY Mellon and any BNY Mellon Affiliate from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYBNY Mellon or any BNY Mellon Affiliate, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder Mellon or any BNY Mellon Affiliate without bad faith, negligence, or willful misconduct, or in reliance upon (i) any lawlave, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement Offering Materials or ProspectusDocuments (excluding information provided by BNY Mellon), (iii) any instructions of an officer of such FundInstructions, or (iv) any opinion of legal counsel for such Fund or BNYBNY Mellon (subject to subsection III below), or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY Mellon nor any BNY Mellon Affiliate for costs, expenses, damages, liabilities or claims for which BNY Mellon or any BNY Mellon Affiliate is liable under the preceding 7(asub-section 9(a). , This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY Mellon and any BNY Mellon Affiliate against and save BNY Mellon and any BNY Mellon Affiliate harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:;
(i) I. Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY Mellon by any third party described above or by or on behalf of a Fund;
(ii) II. Action or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to written or oral instructions Instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) III. Any action taken or omitted to be taken by BNY Mellon in good faith in accordance with the advice or opinion of counsel for a Fund provided that any such action or omission by BNY Mellon in conformity with such advice or opinion of its own counselcounsel is consistent with BNY Mellon’s rights and responsibilities under this Agreement;
(iv) IV. Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY Mellon pursuant to this Agreement;
(v) V. The method of valuation of the securities and the method of computing each Series’ net asset valueNet Asset Value; or
(vi) VI. Any valuations of securities securities, other assets, or net asset value the Net Asset Value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, Instructions or upon any information, order, indenture, stock certificate, membership certificate, power of attorney, assignment, affidavit or other instrument believed in good faith by BNY Mellon in good faith to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the samefrom an Authorized Person, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Eagle Growth & Income Opportunities Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY the Administrator shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a the Fund, except those costs, expenses, damages, liabilities or claims arising out of BNYthe Administrator’s own bad faith, gross negligence or willful misconduct. In no event shall BNY the Administrator be liable to any the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY.
(b) Each The Fund shall indemnify and hold harmless BNY the Administrator from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a the Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNYthe Administrator, by reason of or as a result of any action taken or omitted to be taken by BNY the Administrator in good faith hereunder or in reliance upon (i) any law, act, act or regulation or official interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such the Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such the Fund, or (iv) any opinion of legal counsel for such the Fund or BNYthe Administrator, or arising out of transactions or other activities of such the Fund which occurred prior to the commencement of this Agreement; provided, that no the Fund shall not indemnify BNY the Administrator for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a)arising out of the Administrator’s own gross negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each the Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoing, each Fund shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY the Administrator to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a the Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding . In no event shall the Bank be required to accept or act upon any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fundoral instructions; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws regardless of the Fund making or not making any distribution or dividend payment, or any election with respect theretocircumstances.
Appears in 1 contract
Samples: Administration Agreement (Advent/Claymore Global Convertible Securities & Income Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including attorneys’ and accountants’ fees) incurred by a FundOMCAP, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross or BNY’s delegee or agent that is a subsidiary of The Bank of New York Mellon Corporation negligence or willful misconductmisconduct or BNY’s failure to act in good faith. In no event shall BNY be liable to any Fund OMCAP or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, resulting from or arising out of the incompleteness or inaccuracy of any specifications or other information furnished by the FundOMCAP, or for delays caused by circumstances beyond BNY’s control, unless such loss, damage or expense arises out of the gross negligence or willful misconduct of BNY or BNY’s failure to act in good faith.
(b) Each Fund OMCAP shall indemnify and hold harmless BNY from and against any and all costs, expenses, damages, liabilities and claims (including claims asserted by a FundOMCAP), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against by BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) reasonable reliance upon any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such reliance upon a Fund’s Registration Statement or Prospectus, (iii) reliance upon any instructions of an officer of such FundOMCAP, or (iv) reliance upon any opinion of legal counsel for such Fund OMCAP or BNYBNY pursuant to Section 4(i) of this Agreement, or arising out of transactions or other activities of such a Fund which occurred prior to the commencement of this Agreement; provided, that no Fund OMCAP shall not indemnify BNY for costs, expenses, damages, liabilities or claims and reasonable attorneys’ and accountants’ fees relating thereto, which constitute indirect, special or consequential damages or lost profits, or for which BNY is or may be liable under preceding 7(a6(a), and further provided that legal counsel for OMCAP or the Funds shall be under no obligation to provide legal advice to BNY concerning any matter. This indemnity shall be a continuing obligation of each FundOMCAP, its successors and assigns, notwithstanding the termination of this Agreement. In the event a claim is asserted against OMCAP or a Fund arising out of or in connection with any action or inaction by BNY in performing its duties in accordance with the standard of care set forth hereunder (a “Claim”), and to the extent OMCAP or such Fund asserts and is successful in a related claim against BNY in which it is determined by a court or arbiter of competent jurisdiction that BNY failed to discharge its duties in accordance with the standard of care as set forth hereunder, then BNY shall indemnify OMCAP and such Fund for any and all costs, expenses, direct damages, liabilities or claims (including attorneys’ and accountants’ fees) sustained or incurred as a result of such Claim. Without limiting the generality of the foregoing, each Fund OMCAP shall indemnify BNY against and save BNY harmless from any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above OMCAP or by or on behalf of a Fundits designees;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund OMCAP or otherwise without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund OMCAP or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY counsel pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset value; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Sub Administration and Accounting Agreement (Old Mutual Insurance Series Fund)
Standard of Care; Indemnification. (a) Except as otherwise provided herein, BNY shall not be liable for any costs, expenses, damages, liabilities or claims (including reasonable attorneys’ and accountants’ fees) incurred by a Fund, except those costs, expenses, damages, liabilities or claims arising out of BNY’s own gross negligence negligence, fraud or willful wilful misconduct. In no event shall BNY be liable to any Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY shall not be liable for any loss, damage or expense, including counsel fees and other costs and expenses of a defense against any claim or liability, resulting from, arising out of, or in connection with its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other information furnished by the Fund, or for delays caused by circumstances beyond BNY’s reasonable control, unless such loss, damage or expense arises out of the gross negligence negligence, fraud or willful misconduct of BNY.
(b) Each Fund shall indemnify and hold harmless BNY from and against any and all reasonable costs, expenses, damages, liabilities and claims (including claims asserted by a Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against BNY, by reason of or as a result of any action taken or omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any law, act, regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed, (ii) such Fund’s Registration Statement or Prospectus, (iii) any instructions of an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising out of transactions or other activities of such Fund which occurred prior to the commencement of this Agreement; provided, that no Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY is liable under preceding 7(a6(a). This indemnity shall be a continuing obligation of each Fund, its successors and assigns, notwithstanding the termination of this Agreement. Without limiting the generality of the foregoingforegoing and absent BNY’s negligence, fraud or willful misconduct each Fund shall indemnify BNY against and save BNY harmless from any reasonable loss, damage or expense, including reasonable counsel fees and other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant to written or oral instructions of the Fund or otherwise without gross negligence negligence, fraud or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in accordance with the advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents, distributor or investment advisor of any valuations or computations supplied by BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of computing each Series’ net asset valuevalue to the extent such methods were instructed by a Fund; or
(vi) Any valuations of securities or net asset value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written instructions, or upon any information, order, indenture, stock certificate, power of attorney, assignment, affidavit or other instrument reasonably believed by BNY to be genuine or bearing the signature of a person or persons believed to be authorized to sign, countersign or execute the same, or upon the opinion of legal counsel for a Fund or its own counsel, shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this Agreement, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Fund of: (a) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds, or similar events; (c) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d) the effect under any federal, state, or foreign income tax laws of the Fund making or not making any distribution or dividend payment, or any election with respect thereto.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (IndexIQ ETF Trust)
