Standard of Care; Limitation of Liability. The Adviser will exercise its best judgment in rendering the services described herein. The Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Trust or the Fund in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by the Adviser of its obligations and duties under this Agreement, or a loss resulting from a breach of fiduciary duty with respect to receipt of compensation for services (in which case any award of damages shall be limited to the period and amount set forth in Section 36(b)(3) of the 1940 Act).
Standard of Care; Limitation of Liability. 7.1 The Transfer Agent shall at all times act in good faith without negligence and agrees to exercise the reasonable level of skill, care and diligence of a professional provider to exchange-traded funds of transfer agency services in its performance of all services performed under this Agreement. The Transfer Agent shall have no liability for any error of judgment or mistake of law or for any loss or damage, including encoding and payment processing errors, resulting from the performance or nonperformance of its duties hereunder unless solely caused by or resulting from the negligence, bad faith, fraud or willful misconduct of the Transfer Agent, its officers or employees. The parties agree that any encoding or payment processing errors shall be governed by this standard of care, and that Section 4-209 of the Uniform Commercial Code is superseded by this Section.
7.2 In any event, the Transfer Agent’s cumulative liability for each calendar year (a “Liability Period”) with respect to the services provided pursuant to this Agreement regardless of the form of action or legal theory shall be limited to the Transfer Agent’s total annual compensation earned and fees payable hereunder during the preceding Compensation Period, as defined herein, for any liability or loss suffered by the Trust or the Portfolios including, but not limited to, any liability relating to qualification of the Trust or a Portfolio as a regulated investment company or any liability relating to the Trust’s or a Portfolio’s compliance with any federal or state tax or securities statute, regulation or ruling during such Liability Period; provided that such limitation on liability shall not apply to the Transfer Agent’s gross negligence or intentional misconduct. “Compensation Period” shall mean the calendar year ending immediately prior to each Liability Period in which the event(s) giving rise to the Transfer Agent’s liability for that period has occurred. “Gross negligence” shall mean conduct that rises to the level of reckless disregard of an obligation owed under this Agreement or reckless disregard in the discharge of such obligation. Notwithstanding the foregoing, the Compensation Period for purposes of calculating the annual cumulative liability of the Transfer Agent for the Liability Period commencing on the date of this Agreement and terminating on December 31, 2021 shall be the date of this Agreement through December 31, 2021, calculated on an annualized basis, and the Compensatio...
Standard of Care; Limitation of Liability. (a) Responsibility for Losses. CFS shall be under no duty to take any action on behalf of a Fund except as necessary to fulfill its duties and obligations as specifically set forth herein or as may be specifically agreed to by CFS in writing. CFS shall at all times act in good faith and agrees to use its best efforts within reasonable limits to ensure the accuracy of all services performed under this Agreement, but assumes no responsibility for any loss arising out of any act or omission in carrying out its duties hereunder, except a loss resulting from CFS, its employees’ or its agents’ willful misfeasance, bad faith or gross negligence in the performance of CFS’s duties under this Agreement, or by reason of reckless disregard of CFS, its employees’ or its agents’ obligations and duties hereunder. Notwithstanding the foregoing, the limitation on CFS’s liability shall not apply to the extent any loss or damage results from any fraud committed by CFS or any intentionally bad or malicious acts (that is, acts or breaches undertaken purposefully under circumstances in which the person acting knows or has reason to believe that such act or breach violates such person’s obligations under this Agreement or can cause danger or harm) of CFS. Without limiting the generality of the foregoing or of any other provision of this Agreement, (i) CFS shall not be liable for losses beyond its control, provided that CFS has acted in accordance with the standard of care set forth above; and (ii) CFS shall not be liable for (A) the validity or invalidity or authority or lack thereof of any oral or written instructions provided by the Fund, notice or other instrument which conforms to the applicable requirements of this Agreement, and which CFS reasonably believes to be genuine; or (B) subject to Section 15, delays or errors or loss of data occurring by reason of circumstances beyond CFS’s control, including fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply.
Standard of Care; Limitation of Liability. (a) Subject to the terms of this Section 10, BNYM shall be liable to the Administrator, the Funds (or any person or entity claiming through the Funds) for damages only to the extent caused by BNYM’s own intentional misconduct, willful misfeasance, bad faith or negligence with respect to its duties under this Agreement or its reckless disregard of such duties (“Standard of Care”).
(b) BNYM’s cumulative maximum liability to the Administrator, the Funds and any person or entity claiming through the Funds for any loss, claim, suit, controversy, breach or damage of any nature whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory (“Loss”) shall not exceed the fees received by BNYM for services provided hereunder during the twenty-four (24) months immediately prior to the date of such Loss. If BNYM has provided services for less than twenty-four (24) months immediately prior to the date of such Loss, then BNYM’s Losses shall not exceed the fees BNYM would reasonably be expected to receive for the services provided hereunder during the first twenty-four (24) months of this Agreement. Notwithstanding the foregoing, BNYM’s liability shall not be capped in the event a Loss is attributable to the intentional misconduct or the willful misfeasance of BNYM.
(c) BNYM shall not be liable for damages (including without limitation damages caused by delays, failure, errors, interruption or loss of data) occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; national emergencies; public enemy; war; terrorism; riot; fire; flood; catastrophe; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; non-performance by an unaffiliated third party; failure of the mails; or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the above. Notwithstanding the foregoing, however, BNYM shall use commercially reasonable efforts to mitigate damages and restore service as soon as reasonably possible in the event any of the above circumstances occur.
(d) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or la...
Standard of Care; Limitation of Liability. The Sub-Adviser shall exercise due care and diligence and use the same skill and care in providing its services hereunder as it uses in providing services to other investment companies and accounts, but shall not be liable for any action taken or omitted by it in the performance of services rendered hereunder in the absence of its bad faith, willful misconduct, gross negligence or reckless disregard of its duties.
Standard of Care; Limitation of Liability. The Accounting Agent shall, at all times, act in good faith and exercise reasonable care in performing the Services. The Accounting Agent shall be responsible for the performance of only the Services and, except as otherwise provided under Section 2.3 above, shall have no responsibility for the actions or activities of any other party, including other service providers, except as described in Section 2.3 above. The Accounting Agent shall be entitled to obtain, rely on and act upon the advice of counsel for the Fund on all matters. The Accounting Agent shall be without liability for any action reasonably taken or omitted in good faith in accordance with the advice of counsel for the Fund. For the avoidance of doubt, it is hereby specifically understood and agreed that nothing in this Section shall be construed as imposing upon the Accounting Agent any obligation to seek such advice of counsel for the Fund. Without in any way limiting the generality of the foregoing, the Accounting Agent shall in no event be liable for any loss or damage arising from causes beyond its control or, on an industry standard basis, its anticipation. Each Fund, any Third Party Agent or Authorized Price Sources from which the Accounting Agent shall receive or obtain certain records, reports and other data utilized or included in the services provided hereunder are responsible for the contents of such information including, without limitation, the accuracy thereof and each Fund agrees to make no claim against the Accounting Agent arising out of the contents of such third-party data including, but not limited to, the accuracy thereof. The Accounting Agent shall have no responsibility to review, confirm or otherwise assume any duty with respect to the accuracy or completeness of any such information and shall be without liability for any loss or damage suffered as a result of the Accounting Agent's reasonable reliance on and utilization of such information, except as otherwise required by the Price Source Authorization with respect to the use of data obtained from Authorized Price Sources. The Accounting Agent shall have no responsibility and shall be without liability for any loss or damage caused by the failure of any Fund, Authorized Person or Third Party Agent to provide it with the information required by Section 3.1, Section 3.2 or Section 3.3 above. Further, and without in any way limiting the generality of the foregoing, the Accounting Agent shall have no liability in respect ...
Standard of Care; Limitation of Liability. The Transfer Agent shall at all times act in good faith and agrees to use its best efforts within reasonable limits to ensure the accuracy of all services performed under this Agreement, but assumes no responsibility and shall not be liable for loss or damage due to errors, including encoding and payment processing errors, unless said errors are caused by its negligence, bad faith, or willful misconduct or that of its employees or agents. The parties agree that any encoding or payment processing errors shall be governed by this standard of care and Section 4-209 of the Uniform Commercial Code is superseded by Section 9 of this Agreement. This standard of care also shall apply to Exception Services, as defined in Section 2.3 herein, but such application shall take into consideration the manual processing involved in, and time sensitive nature of, Exception Services. Notwithstanding the foregoing, the Transfer Agent’s aggregate liability during any term of this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided by the Transfer Agent under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the aggregate of the amounts actually received hereunder by the Transfer Agent as fees and charges, but not including reimbursable expenses, during the six (6) calendar months immediately preceding the event for which recovery from the Transfer Agent is being sought.
Standard of Care; Limitation of Liability. 9.1 The Transfer Agent shall at all times act in good faith and agrees to use its best efforts within reasonable limits to ensure the accuracy of all services performed under this Agreement, but assumes no responsibility and shall not be liable for loss or damage due to errors, including encoding and payment processing errors, unless said errors are caused by its negligence, bad faith, or willful misconduct or that of its employees or agents. The parties agree that any encoding or payment processing errors shall be governed by this standard of care and Section 4-209 of the Uniform Commercial Code is superseded by Section 9 of this Agreement. The Transfer Agent shall provide the Fund, at such times as the Fund may reasonably require, copies of publicly available reports rendered by independent public accountants on the internal controls and procedures of the Transfer Agent relating to the Services provided by the Transfer Agent under this Agreement.
9.2 The liability of the Transfer Agent hereunder shall be subject to the limits, if any, set forth on Schedule 3.1 attached hereto, as the same may be amended from time to time by mutual written agreement of the parties.
9.3 Notwithstanding anything to the contrary contained herein, the omission of an express indemnity in favor of the Fund, as to all matters other than intellectual property infringement, shall in no way be construed so as to limit the legal rights, remedies and/or recourse of the Fund against the Transfer Agent, and the Fund does hereby reserve any and all such rights, remedies and recourse, with respect to any breach by the Transfer Agent of any provision of this Agreement.
Standard of Care; Limitation of Liability. The Adviser will exercise its best judgment in rendering the services described in paragraph 4 above. The Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Funds in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by the Adviser of its obligations and duties under this Agreement, or a loss resulting from a breach of fiduciary duty with respect to receipt of compensation for services (in which case any award of damages shall be limited to the period and amount set forth in Section 36(b)(3) of the 1940 Act). Any person, even though an officer, director, employee, or agent of the Adviser, who may be or become an officer, trustee, employee or agent of the Funds, will be deemed, when rendering services to the Funds, to be rendering such services to, or acting solely for, the Funds and not as an officer, director, employee or agent, or one under the control or direction of the Adviser, even though paid by it.
Standard of Care; Limitation of Liability. 4.1 The Distributor shall not be liable to the Fund for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the performance of its obligations and duties under this Agreement, except a loss resulting from: (a) the Distributor’s willful misfeasance, bad faith or negligence in the performance of such obligations and duties, or by reason of its reckless disregard thereof; or (b) the Distributor’s breach of Section 12 of this Agreement.
4.2 Each party shall have the duty to mitigate damages for which the other party may become responsible.
4.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL DAMAGES, PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION 4.3 SHALL BE CONSTRUED SO AS TO LIMIT THE RIGHTS OF ANY SHAREHOLDER OF THE FUND, WHETHER SUING ON HIS, HER OR ITS OWN BEHALF OR DERIVATIVELY THROUGH THE FUND, TO CONSEQUENTIAL DAMAGES.
