Standard of Care, Limitation of Liability and Indemnification. (a) The Sub-Adviser shall exercise its best judgment in rendering the services under this Agreement. The Sub-Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Trust, the Adviser or the Fund, or affiliated persons of the Adviser or the Fund (collectively, the "Adviser Indemnitees") in connection with the matters to which this Agreement relates except a loss resulting from the Sub-Adviser's willful misfeasance, bad faith or gross negligence in the performance of its obligations and duties, or by reason of its reckless disregard of its obligations and duties, under this Agreement; provided, however, that nothing herein shall be deemed to protect or purport to protect the Sub-Adviser against any liability to the Adviser Indemnitees for, and the Sub-Adviser shall indemnify and hold harmless the Adviser Indemnitees from, any and all claims, losses, expenses, obligations and liabilities (including reasonable attorney's fees) to which any of the Adviser Indemnitees may become subject arising out of or resulting from (i) the Sub-Adviser causing the Fund to be in violation of any applicable federal or state law, rule or regulation or any investment policy or restriction set forth in the Fund's current Registration Statement or the most current written guidelines, policies or instruction provided in writing by the Board or the Adviser, (ii) the Sub-Adviser causing the Fund to fail to satisfy the requirements set forth in Section 2(i) hereof, (iii) any untrue statement of a material fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Sub-Adviser or the Portfolio managed by the Sub-Adviser or the omission to state therein a material fact known to the Sub-Adviser that was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser for use therein, or (iv) a breach of this Agreement by the Sub-Adviser. In addition, the Sub-Adviser shall indemnify and hold harmless the Trust and the Fund from any and all claims, losses, expenses, obligations and liabilities (including reasonable attorney's fees) to which either the Trust or the Fund may become subject directly arising out of or resulting from a breach of fiduciary duty by the Sub-Adviser under Section 36(b) of the 1940 Act with...
Standard of Care, Limitation of Liability and Indemnification. A. SS&C, including SS&C’s employees, agents or affiliated companies to whom SS&C has subcontracted the performance of any of SS&C’s obligations under this Agreement (each an “SS&C Agent”) whether or not such SS&C Agent is known to the Fund, shall at all times use reasonable care, due diligence and act in good faith in performing its duties under this Agreement. No person or entity shall be an SS&C Agent unless SS&C shall control, or have the ability to control, such agent’s performance of SS&C’s obligations under this Agreement. SS&C shall be solely responsible for acts, errors or omissions resulting in material harm to a Fund. SS&C shall provide its services as Transfer Agent in accordance with Section 17A of the Securities Exchange Act of 1934, and the rules and regulations thereunder. Notwithstanding anything in this Agreement to the contrary and to the extent permitted by law, SS&C, including its employees, agents or affiliated companies to whom SS&C has subcontracted the performance of any of SS&C’s obligations under this Agreement (each, a “SS&C Associate”) shall not be liable to the Trust for any action or inaction of any SS&C Associate except to the extent of direct Losses (defined as losses, damages, costs, charges, counsel fees, payments, expenses and liabilities) finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, willful misconduct or fraud of SS&C in the performance of SS&C’s duties or obligations under this Agreement. Under no circumstances except in connection with indemnification obligations for third party claims shall either Party be liable for Losses that are indirect, special, incidental, consequential, punitive, exemplary or enhanced or that represent lost profits, opportunity costs or diminution of value. Trust shall indemnify, defend and hold harmless SS&C Associates from and against Losses (including legal fees and costs to enforce this provision) that SS&C Associates suffer, incur, or pay as a result of any Third Party Claim , except to the extent such Losses resulted primarily from the gross negligence, willful misconduct or fraud of SS&C Associates in the performance of SS&C’s duties or obligations under this Agreement. SS&C shall indemnify, defend and hold harmless the Trust from and against Losses (including legal fees and costs to enforce this provision) that the Trust suffers, incurs, or pays as a result of any Third Party Claim arising out of or relating to the provis...
Standard of Care, Limitation of Liability and Indemnification. (a) The Adviser shall exercise its best judgment in rendering the services provided by it under this Agreement. The Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by any Funds or the shareholders of the Funds in connection with the matters to which this Agreement relates, provided that nothing in this Agreement shall be deemed to protect or purport to protect the Adviser against any liability to the Trust, the Funds or to shareholders of the Funds to which the Adviser would otherwise be subject by reason of breach of this Agreement or willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or by reason of the Adviser’s reckless disregard of its obligations and duties under this Agreement.
(b) Notwithstanding any other provision of this Agreement, the Adviser shall not be liable for any loss to the Funds caused directly or indirectly by circumstances beyond the Adviser’s reasonable control including, but not limited to, government restrictions, exchange or market rulings, suspensions of trading, acts of civil or military authority, national emergencies, earthquakes, floods or other catastrophes, acts of God, wars or failures of communication or power supply, provided that: (1) the Adviser has implemented and maintains a business continuity plan that is deemed to be reasonable and appropriate by the Board, (2) the business continuity plan complies with applicable laws, rules and regulations, and (3) the Adviser uses its best efforts to mitigate losses of the Funds.
(c) The Adviser agrees to indemnify and hold harmless the Trust any affiliated persons within the meaning of Section 2(a)(3) under the 1940 Act of the Trust (other than the Adviser and its affiliates), and each person who, within the meaning of Section 15(c) of the 1933 Act, controls (“controlling person”) the Trust (other than the Adviser or its affiliate, if the Adviser or such affiliate is found to control the Trust) (collectively, the “Indemnified Persons”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which the Indemnified Persons may become subject under applicable laws, rules and regulations, at common law or otherwise, arising out of the Adviser’s responsibilities to the Funds which may be based on any willful misfeasance, bad faith or gross negligence on the Adviser’s part in the performance of its duties or by reason of the ...
Standard of Care, Limitation of Liability and Indemnification. 6.1. Notwithstanding anything in this Agreement to the contrary DST Associates shall not be liable to the Fund for any action or inaction of any DST Associate except to the extent of direct Losses finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence, willful misconduct or fraud of DST in the performance of DST’s duties or obligations under this Agreement. Under no circumstances shall DST Associates be liable to the Fund for Losses that are indirect, special, incidental, consequential, punitive, exemplary or enhanced or that represent lost profits, opportunity costs or diminution of value. The Fund shall indemnify, defend and hold harmless DST Associates from and against Losses (including legal fees and costs to enforce this provision) that DST Associates suffer, incur, or pay as a result of any Third Party Claim or Claim among the Parties. Any expenses (including legal fees and costs) incurred by DST Associates in defending or responding to any Claims (or in enforcing this provision) shall be paid by the Fund on a quarterly basis prior to the final disposition of such matter upon receipt by the Fund of an undertaking by DST to repay such amount if it shall be determined that an DST Associate is not entitled to be indemnified. The maximum aggregate amount of cumulative liability of DST Associates to the Fund for Losses arising out of the subject matter of, or in any way related to, this Agreement during the Term hereof, shall not exceed the fees (but excluding any expenses) paid by the Fund to DST under this Agreement for the most recent 12 months immediately preceding the date of the event giving rise to the Claim.
Standard of Care, Limitation of Liability and Indemnification. 6.1. Notwithstanding anything in this Agreement to the contrary DST Associates shall not be liable to the Fund for any action or inaction of any DST Associate except to the extent of direct Losses finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence, willful misconduct or fraud of DST or DST Associates in the performance of DST’s duties or obligations under this Agreement. The Fund shall indemnify, defend and hold harmless DST Associates from and against direct Losses (including reasonable legal fees and costs to enforce this provision) that DST Associates suffer, incur, or pay as a result of any Third Party Claim or Claim among the Parties. Any expenses (including reasonable legal fees and costs) incurred by DST Associates in defending or responding to any Claims (or in enforcing this provision) shall be paid by the Fund upon receipt by the Fund of an undertaking by DST to repay such amount if it shall be determined that a DST Associate is not entitled to be indemnified. THE MAXIMUM AGGREGATE AMOUNT OF CUMULATIVE LIABILITY OF DST ASSOCIATES TO THE FUND FOR LOSSES ARISING OUT OF THE SUBJECT MATTER OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT DURING THE TERM HEREOF, SHALL NOT EXCEED THE FEES (BUT EXCLUDING ANY EXPENSES) PAID BY THE FUND TO DST UNDER THIS AGREEMENT FOR THE MOST RECENT 24 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, OR IF LESS THAN 24 MONTHS HAS ELAPSED SINCE THE EFFECTIVE DATE, THE LIMIT ON DST’S LIABILITY SHALL EQUAL THE AMOUNT OF PAYMENTS MADE (EXCLUDING EXPENSES) DURING SUCH SHORTER PERIOD. EXCEPT WITH RESPECT TO ALL AMOUNTS PAYABLE BY FUND AS PART OF ITS INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 6, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSSES THAT ARE INDIRECT, SPECIAL INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR ENHANCED OR THAT REPRESENT LOST PROFITS, OPPORTUNITY COSTS OR DIMINUTION OF VALUE.
6.2. DST and the Fund will discuss liability for any “as of” transaction losses due to clerical errors or misinterpretations of securityholder instructions on a case-by-case basis. Subject to the limitation on liability set forth in Section 6.1 above, DST may accept responsibility for a particular situation resulting in an “as of” loss to the Fund where such loss is “material,” as hereinafter defined, and, under the particular facts at issue, DST believes in its discretion that its conduct was a breach of the standard of ca...
Standard of Care, Limitation of Liability and Indemnification. The Administrator shall be responsible for the performance only of such duties as are set forth in this Agreement and, except as otherwise provided under Section 6, shall have no responsibility for the actions or activities of any other party, including other service providers. The Administrator shall have no liability in respect of any loss, damage or expense suffered by the Trust insofar as such loss, damage or expense arises from the performance of the Administrator’s duties hereunder in reliance upon records that were maintained for the Trust by entities other than the Administrator prior to the Administrator’s appointment as administrator for the Trust. The Administrator shall have no liability for any error of judgment or mistake of law or for any loss or damage resulting from the performance or nonperformance of its duties hereunder unless solely caused by or resulting from the gross negligence or willful misconduct of the Administrator, its officers or employees. The Administrator shall not be liable for any special, indirect, incidental, punitive or consequential damages, including lost profits, of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement or for any such damages arising out of any act or failure to act hereunder, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether either party or any entity had been advised of the possibility of such damages. Except as otherwise agreed by the parties, in any event, the Administrator’s cumulative liability for each calendar year (a “Liability Period”) with respect to the Trust under this Agreement regardless of the form of action or legal theory shall be limited to its 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 including, but not limited to, any liability relating to qualification of the Trust as a regulated investment company or any liability relating to the Trust’s compliance with any federal or state tax or securities statute, regulation or ruling during such Liability Period. “
Standard of Care, Limitation of Liability and Indemnification. The Administrator shall be held to the exercise of reasonable care and good faith in carrying out the provisions of this Agreement (the “Standard of Care”). The Administrator shall be responsible for the performance only of such duties as are set forth in this Agreement and, except as otherwise provided under Section 6, shall have no responsibility for the actions or activities of any other party, including other service providers. The Administrator shall have no liability in respect of any loss, damage or expense suffered by any Portfolio insofar as such loss, damage or expense arises from the performance of the Administrator’s duties hereunder in reliance upon records that were maintained for each Portfolio by entities other than the Administrator prior to the Administrator’s appointment as administrator for each Portfolio. The Administrator shall have no liability for any error of judgment or mistake of law or for any loss, cost, expense or damage resulting from the performance or nonperformance of its duties hereunder unless such loss, cost, expense or damage arises directly from, and then only to the extent of, the negligence, willful misconduct or bad faith of the Administrator, its officers, employees or agents. The Administrator shall not be liable for any special, indirect, incidental, punitive or consequential damages, including lost profits, of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement or for any such damages
Standard of Care, Limitation of Liability and Indemnification. You may rely on information reasonably believed by you to be accurate and reliable. Except as may otherwise be required by the 1940 Act or the rules thereunder, neither you nor your directors, officers, employees, shareholders, members, agents, control persons or affiliates of any thereof shall be subject to any liability to the Fund or its shareholders for any damages, expenses or losses in connection with any act or omission connected with or arising out of any services rendered under, or payments made pursuant to, this Agreement or any other matter to which this Agreement relates, or in connection with any error of judgment or mistake of law, except by reason of willful misfeasance, bad faith or gross negligence on the part of you or any such persons in the performance of your duties under this Agreement, or by reason of reckless disregard by any of such persons of your obligations and duties under this Agreement. Any person, even though also a director, officer, employee, shareholder, member or agent of you, who may be or become a trustee, officer, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with your duties hereunder), to be rendering such services to or acting solely for the Trust and not as a director, officer, employee, shareholder, member, or agent of you, or one under your control or direction, even though paid by you.
Standard of Care, Limitation of Liability and Indemnification a. In carrying out the provisions of this Agreement, the Administrator shall at all times act in good faith and without negligence and agrees to exercise the reasonable level of skill, care and diligence expected of a professional provider of administrative services in carrying out all of its duties and obligations under this Agreement, but assumes no responsibility and shall not be liable for any loss, liability, claim or expense suffered or incurred by the Trust except to the extent caused solely by the Administrator’s fraud, negligence or willful misconduct or that of its agents or employees in fulfillment of the Administrator’s duties hereunder. The Administrator shall be responsible for the performance only of such duties as are set forth in this Agreement and, except as otherwise provided under Section 12.6, shall have no responsibility for the actions or activities of any other party, including other service providers.
b. The Administrator shall have no liability in respect of any loss, damage or expense suffered by the Trust insofar as such loss, damage or expense arises from the performance of the Administrator’s duties hereunder in reliance upon records that were maintained for such Trust by entities other than the Administrator prior to the Administrator’s appointment as administrator for the Trust. The Administrator shall have no liability for any error of judgment or mistake of law or for any loss or damage resulting from the performance or nonperformance of its duties hereunder unless solely caused by or resulting from the negligence or willful misconduct of the Administrator, its officers or employees.
c. No party shall be liable for any special, indirect, incidental, punitive or consequential damages, including lost profits, of any kind whatsoever (including, without limitation, reasonable attorneys’ fees) under any provision of this Agreement or for any such damages arising out of any act or failure to act hereunder, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether the relevant party or any entity had been advised of the possibility of such damages. State Street: Limited Access
d. In any event, the Administrator’s cumulative liability for each calendar year (a “Liability Period”) with respect to the Trust under this Agreement regardless of the form of action or legal theory shall be limited to its total annual compensation earned and fees payable hereunder during th...
Standard of Care, Limitation of Liability and Indemnification. 6.1. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY DST SHALL NOT BE LIABLE TO FUND FOR ANY ACTION OR INACTION OF DST OR ANY OF DST’S AFFILIATES AND ASSOCIATES EXCEPT TO THE EXTENT OF DIRECT LOSSES ARISING SOLELY FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OF DST IN THE PERFORMANCE OF DST’S DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, THE PRIOR SENTENCE DOES NOT LIMIT DST’S INDEMNITY OBLIGATIONS UNDER SECTION 6.2. EXCEPT WITH RESPECT TO ALL AMOUNTS PAYABLE BY EACH PARTY AS PART OF ITS INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSSES THAT ARE INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR ENHANCED OR THAT REPRESENT LOST PROFITS, OPPORTUNITY COSTS OR DIMINUTION OF VALUE. FUND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS DST AND DST’S AFFILIATES AND ASSOCIATES FROM AND AGAINST LOSSES (INCLUDING DOCUMENTED LEGAL FEES AND COSTS TO ENFORCE THIS PROVISION) THAT DST AND ITS AFFILIATES AND ASSOCIATES SUFFER, INCUR, OR PAY AS A RESULT OF ANY THIRD PARTY CLAIM ARISING OUT OF FUND’S USE OF THE SERVICES OR DELIVERABLES, BUT EXCLUDING ANY CLAIMS ARISING OUT OF DST’S FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR TO THE EXTENT THAT DST INDEMNIFIES FUND. SUBJECT TO SECTION 6.3, ANY EXPENSES (INCLUDING LEGAL FEES AND COSTS) INCURRED BY DST IN DEFENDING OR RESPONDING TO ANY CLAIMS (OR IN ENFORCING THIS PROVISION) SHALL BE PAID BY FUND ON A QUARTERLY BASIS PRIOR TO THE FINAL DISPOSITION OF SUCH MATTER UPON RECEIPT BY FUND OF AN UNDERTAKING BY DST TO REPAY SUCH AMOUNT IF IT SHALL BE DETERMINED THAT DST OR A DST ASSOCIATE IS NOT ENTITLED TO BE INDEMNIFIED. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, FRAUD, OR WILLFUL MISCONDUCT, THE MAXIMUM AMOUNT OF CUMULATIVE LIABILITY OF DST TO FUND FOR LOSSES ARISING OUT OF THE SUBJECT MATTER OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY FUND TO DST UNDER THE APPLICABLE STATEMENT OF WORK GIVING RISE TO THE CLAIM FOR THE 24 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, EXCEPT FOR THE MAXIMUM AGGREGATE AMOUNT OF CUMULATIVE LIABILITY OF DST TO THE FUND FOR LOSSES ARISING OUT OF, OR IN ANY WAY RELATED TO, DST’S DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT WHICH SHALL NOT EXCEED THREE TIMES THE FEES FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (THE “DATA BREACH CAP”); PROV...
