Common use of Standard of Care, Limitation of Liability and Indemnification Clause in Contracts

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 care set forth in 6.1 above and DST’s conduct was the sole cause of the loss. A loss is “material” for purposes of this Section 6.2 when it results in a pricing error on a particular transaction which equals or exceeds one full cent ($.01) per share times the number of shares outstanding. If the net effect of the “as of” transactions described herein that are determined to be caused solely by DST is negative and exceeds the above materiality threshold, then DST shall promptly contact the Fund. DST will work with the Fund and the Fund’s accountants to determine what, if any, impact the threshold break has on the Fund’s Net Asset Value and what, if any, further action is required. These further actions may include but are not limited to, the Fund re-pricing the affected day(s), DST re-processing, at its expense, all affected transactions in the Fund that took place during the period, or a payment to the Fund. The Fund agrees to work in good faith with DST and wherever possible, absent a regulatory prohibition or other mutually agreed upon reason, the Fund agrees to re-price the affected day(s) and to allow DST to re-process the affected transactions. When such re-pricing and re-processing is not possible, and when DST must contribute to the settlement of a loss, DST’s responsibility will commence with that portion of the loss over $0.01 per share calculated on the basis of the total value of all shares of the Fund (i.e., on the basis of the value of the shares of the Fund, including all classes of the Fund, not just those of the affected class).

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 suffered, incurred or paid by the Fund that are finally determined by a court of competent jurisdiction to have resulted solely primarily 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; except to the extent of Losses determined by a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or fraud of DST Associates in the performance of DST’s duties or obligations under this Agreement. 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 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 a DST Associate is not entitled to be indemnified. THE MAXIMUM AGGREGATE AMOUNT OF CUMULATIVE LIABILITY OF The maximum aggregate amount of cumulative liability of DST ASSOCIATES TO THE FUND FOR LOSSES ARISING OUT OF THE SUBJECT MATTER OFAssociates to the Fund for Losses arising out of the subject matter of, OR IN ANY WAY RELATED TOor in any way related to, THIS AGREEMENT DURING THE TERM HEREOFthis Agreement during the Term hereof, SHALL NOT EXCEED THE FEES shall not exceed the fees (BUT EXCLUDING ANY EXPENSESbut excluding any expenses) PAID BY THE FUND TO 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 VALUEunder this Agreement for the most recent 12 months immediately preceding the date of the event giving rise to the Claim. 6.2. DST and Except with respect to all amounts payable by the Fund will discuss liability for any “as of” transaction losses due to clerical errors or misinterpretations part of securityholder instructions on a case-by-case basis. Subject its indemnification obligations under this Section 6, under no circumstances shall either party be liable to the limitation on liability set forth in Section 6.1 above, DST may accept responsibility other party 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 care set forth in 6.1 above and DST’s conduct was the sole cause of the loss. A loss is “material” for purposes of this Section 6.2 when it results in a pricing error on a particular transaction which equals or exceeds one full cent ($.01) per share times the number of shares outstanding. If the net effect of the “as of” transactions described herein Losses that are determined to be caused solely by DST is negative and exceeds the above materiality thresholdindirect, then DST shall promptly contact the Fund. DST will work with the Fund and the Fund’s accountants to determine whatspecial, if anyincidental, impact the threshold break has on the Fund’s Net Asset Value and whatconsequential, if anypunitive, further action is required. These further actions may include but are not limited toexemplary or enhanced or that represent lost profits, the Fund re-pricing the affected day(s), DST re-processing, at its expense, all affected transactions in the Fund that took place during the period, opportunity costs or a payment to the Funddiminution of value. The Fund acknowledges and agrees that DST’s out-of-pocket expenses and any judgements awarded against and payable to work in good faith with DST and wherever possible, absent a regulatory prohibition or other mutually agreed upon reason, resulting from claims for which DST is entitled to indemnification by the Fund agrees to re-price the affected day(s) and to allow DST to re-process the affected transactions. When such re-pricing and re-processing is not possible, and when DST must contribute to the settlement of a loss, DST’s responsibility will commence with that portion of the loss over $0.01 per share calculated on the basis of the total value of all shares of the Fund (i.e., on the basis of the value of the shares of the Fund, including all classes of the Fund, not just those of the affected class)under Section 6 shall be deemed direct damages.

Standard of Care, Limitation of Liability and Indemnification. 6.1. Notwithstanding anything in 6.1 DST, including DST’s employees, agents or affiliated companies to whom DST has subcontracted the performance of any of DST’s obligations under this Agreement (each a “DST Agent”) whether or not such DST Agent is known to the contrary 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 a DST Associates Agent unless DST shall not be liable control, or have the ability 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 negligencecontrol, willful misconduct or fraud of DST or DST Associates in the such agent’s performance of DST’s duties or obligations under this Agreement. The DST shall be solely responsible for acts, errors or omissions resulting in material harm to a Fund committed by its DST Agents. DST 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. In the absence of bad faith, willful misconduct, knowing violations of applicable law pertaining to the manner in which transfer agency services are to be performed by DST (excluding any violations arising directly or indirectly out of the actions or omissions to act of third parties unaffiliated with DST), reckless disregard of the performance of its duties, or negligence on its part, DST shall not be liable for any action taken, suffered, or omitted by it or for any error of judgment made by it in the performance of its duties under this Agreement. For those activities or actions delineated in the Procedures (as defined in Schedule A), DST shall be presumed to have used reasonable care, due diligence and acted in good faith if it has acted in accordance with the Procedures, copies of which have been provided to the Fund and reviewed and approved by the Fund's counsel, as amended from time to time with approval of counsel, or for any deviation therefrom approved by the Fund or DST counsel. 6.2 DST shall not be responsible for, and the Fund shall indemnify, defend indemnify and hold DST harmless DST Associates from and against, any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability which may be asserted against direct Losses DST or for which DST may be held to be liable (including reasonable legal without limitation any attorney’s fees and or court 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 provisionright to the Fund’s indemnification) shall (the “Adverse Consequences”), arising out of or attributable to: 6.2.1 All actions or omissions to act of DST required to be paid taken or omitted by DST pursuant to this Agreement, provided that DST has acted in good faith and with due diligence and reasonable care and further provided DST has not materially breached any representation or warranties or material obligation under this Agreement in connection with such action or omission; 6.2.2 The Fund's refusal or failure to comply with the terms of this Agreement, the Fund's negligence or willful misconduct, or the breach of any representation or warranty of the Fund hereunder; 6.2.3 The good faith reliance on, or the carrying out of, any written or oral instructions or requests of persons designated by the Fund upon receipt in writing (see Schedule C) from time to time as authorized to give instructions on its behalf or representatives of an Authorized Person or DST's good faith reliance on, or use of, information, data, records and documents received from, or which have been prepared and/or maintained by the Fund, its investment advisor, its sponsor or its principal underwriter or any other person or entity from whom the Fund instructs DST to accept and utilize information, data, records, transmissions and documents; 6.2.4 Defaults by dealers or shareowners with respect to payment for share orders previously entered provided DST has not materially contributed to the occurrence of the default; 6.2.5 The offer or sale of the Funds’ Shares in violation of any requirement under federal securities laws or regulations or the securities laws or regulations of any state or in violation of any stop order or other determination or ruling by any federal agency or state with respect to the offer or sale of such Shares in such state (unless such violation results from DST's failure to comply with written instructions of the Fund or of any officer or other authorized person of the Fund that no offers or sales be permitted to remain in the Fund's securityholder records in or to residents of such state); 6.2.6 the Fund's errors and mistakes in the use of the TA2000 System, the data center, computer and related equipment used to access the TA2000 System (the "DST Facilities"), and control procedures relating thereto in the verification of output and in the remote input of data; 6.2.7 Errors, inaccuracies, and omissions in, or errors, inaccuracies or omissions of DST arising out of or resulting from such errors, inaccuracies and omissions in, the Fund’s records, shareholder and other records, delivered to DST hereunder by or on behalf of the Fund or delivered by the prior agent(s) of the Fund; 6.2.8 Actions or omissions to act by the Fund or agents designated by the Fund with respect to duties assumed thereby; 6.2.9 Solely if the Fund elects to have DST perform Exception Services, DST’s performance of Exception Services except where DST acted or omitted to act in bad faith, with reckless disregard of its obligations or with Gross Negligence, as hereinafter defined; and 6.2.10 Any inaccuracies in dates in any Fund’s shareholder information or history as converted, or any (i) difficulties or inability of DST or any third party to manipulate or process date data, or (ii) lack of functionality (including any errors resulting from the "windowing" (currently 1950 to 2049) of client's historical records or non-Year 2000 complaint data provided to DST by third parties) which, in case of (i) or (ii) above, arises out of or results from the failure of a Fund’s records to contain date data feeds in an undertaking eight digit, full century format, or any other such Year 2000 complaint format for data feeds specified from time to time by DST. 6.3 Except where 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. indemnification under Section 6.2. DST hereof and the Fund will discuss liability for any “with respect to "as of” transaction losses due to clerical errors or misinterpretations of securityholder instructions on a case-by-case basis. Subject ofs" to the limitation on liability extent set forth in Section 6.1 above6.6., DST may accept responsibility for a particular situation resulting in an “as of” loss to shall indemnify and hold the Fund where such loss is “material,” harmless from and against any and all Adverse Consequences arising out of DST's failure to comply with the terms of this Agreement or arising out of or attributable to DST' lack of good faith, negligence or willful misconduct or breach of any representation or warranty of DST hereunder; provided, however, that for any reason other than DST’s lack of good faith, willful misconduct or with Gross Negligence, as hereinafter defined, andDST's cumulative 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 under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the particular facts at issueaggregate amounts paid hereunder by the Fund to DST as fees and charges solely on behalf of or with respect to the Services provided hereunder to the Fund or Funds seeking indemnification against Adverse Consequences, DST believes but not including reimbursable expenses, during the twelve (12) months (or the approximate equivalent of twelve months’ fees in its discretion that its conduct was a breach of cases where less than twelve months having been elapsed before the standard of care set forth in 6.1 above and act giving rise to DST’s conduct was liability) immediately preceding the sole cause of the lossevent giving rise to DST’s liability. A loss is “material” for For purposes of this Section 6.2 when it results in a pricing error on a particular transaction which equals or exceeds one full cent ($.01) per share times the number of shares outstanding. If the net effect of the “as of” transactions described herein that are determined to be caused solely by DST is negative and exceeds the above materiality threshold, then DST shall promptly contact the Fund. DST will work with the Fund and the Fund’s accountants to determine what, if any, impact the threshold break has on the Fund’s Net Asset Value and what, if any, further action is required. These further actions may include but are not limited toAgreement, the Fund re-pricing term “Gross Negligence” shall mean an act or omission by a Party which amounts to indifference to a present legal duty and utter forgetfulness of its legal obligations so far as the affected day(s)other Party is concerned. For purposes of determining whether a Party’s act or omission is Grossly Negligent, DST re-processing, at its expense, all affected transactions in the Fund that took place during the period, or a payment trier of fact will look solely to the Fund. The Fund agrees to work behavior inherent in good faith with DST and wherever possible, absent a regulatory prohibition or other mutually agreed upon reason, the Fund agrees to re-price the affected day(s) and to allow DST to re-process the affected transactions. When such re-pricing and re-processing is not possible, and when DST must contribute giving rise to the settlement act or omission itself without giving any consideration to the amount or degree of a loss, DST’s responsibility will commence with that portion of harm caused by the loss over $0.01 per share calculated on the basis of the total value of all shares of the Fund (i.e., on the basis of the value of the shares of the Fund, including all classes of the Fund, not just those of the affected class)act or omission.

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. 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 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 PartiesParties except to the extent it is finally determined by a court of competent jurisdiction that such Losses resulted solely from the gross negligence, willful misconduct or fraud of DST Associates in the performance of DST’s duties or obligations under this Agreement. 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 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 a an DST Associate is not entitled to be indemnified. THE MAXIMUM AGGREGATE AMOUNT OF CUMULATIVE LIABILITY OF 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 Associates 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 for Losses arising out of the standard subject matter of, or in any way related to, this Agreement during the Term hereof, except to the extent of care set forth Losses resulting solely from the willful misconduct or fraud of DST in 6.1 above and the performance of DST’s conduct was duties or obligations under this Agreement, shall not exceed the sole cause 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 loss. A loss is “material” for purposes of this Section 6.2 when it results in a pricing error on a particular transaction which equals or exceeds one full cent ($.01) per share times the number of shares outstanding. If the net effect of the “as of” transactions described herein that are determined to be caused solely by DST is negative and exceeds the above materiality threshold, then DST shall promptly contact the Fund. DST will work with the Fund and the Fund’s accountants to determine what, if any, impact the threshold break has on the Fund’s Net Asset Value and what, if any, further action is required. These further actions may include but are not limited to, the Fund re-pricing the affected day(s), DST re-processing, at its expense, all affected transactions in the Fund that took place during the period, or a payment event giving rise to the Fund. The Fund agrees to work in good faith with DST and wherever possible, absent a regulatory prohibition or other mutually agreed upon reason, the Fund agrees to re-price the affected day(s) and to allow DST to re-process the affected transactions. When such re-pricing and re-processing is not possible, and when DST must contribute to the settlement of a loss, DST’s responsibility will commence with that portion of the loss over $0.01 per share calculated on the basis of the total value of all shares of the Fund (i.e., on the basis of the value of the shares of the Fund, including all classes of the Fund, not just those of the affected class)Claim.

Standard of Care, Limitation of Liability and Indemnification. 6.1The Administrator agrees to perform its services under this Agreement without negligence. Notwithstanding anything 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 contrary DST Associates 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 such loss or damage arises directly from, and then only the extent of, the negligence, willful misfeasance 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. In any event, except as otherwise agreed to in writing by the parties hereto, the Administrator’s cumulative liability for each calendar year (a “Liability Period”) with respect to the Fund 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 action liability 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 loss suffered 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 OFTrust including, 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 care set forth in 6.1 above and DST’s conduct was the sole cause of the loss. A loss is “material” for purposes of this Section 6.2 when it results in a pricing error on a particular transaction which equals or exceeds one full cent ($.01) per share times the number of shares outstanding. If the net effect of the “as of” transactions described herein that are determined to be caused solely by DST is negative and exceeds the above materiality threshold, then DST shall promptly contact the Fund. DST will work with the Fund and the Fund’s accountants to determine what, if any, impact the threshold break has on the Fund’s Net Asset Value and what, if any, further action is required. These further actions may include but are not limited to, the Fund re-pricing the affected day(s), DST re-processing, at its expense, all affected transactions in the Fund that took place during the period, or a payment any liability relating to the Fund. The Fund agrees to work in good faith with DST and wherever possible, absent a regulatory prohibition or other mutually agreed upon reason, the Fund agrees to re-price the affected day(s) and to allow DST to re-process the affected transactions. When such re-pricing and re-processing is not possible, and when DST must contribute to the settlement qualification of a lossFund as a regulated investment company or any liability relating to a Fund’s compliance with any federal or state tax or securities statute, DST’s responsibility will commence with that portion of the loss over $0.01 per share calculated on the basis of the total value of all shares of the Fund (i.e., on the basis of the value of the shares of the Fund, including all classes of the Fund, not just those of the affected class).regulation or ruling during such Liability Period. “