Standard of Care; Limitation of Liability; Indemnification. (a) ALPS shall be obligated to act in good faith and to exercise commercially reasonable care and diligence in the performance of its duties under this Agreement, including with regard to the processing of investments checks using mutually agreed upon procedures. 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processing errors shall be governed by this standard of care and Section 4-209 of the Uniform Commercial Code is superseded by this Section 4 of this Agreement.
(b) In the absence of willful misfeasance, bad faith, negligence or reckless disregard by ALPS in the performance of its duties, obligations or responsibilities set forth in this Agreement, ALPS and its affiliates, including their respective officers, directors, agents and employees, shall not be liable for, and the Trust agrees to indemnify, defend and hold harmless such persons from, all taxes, charges, expenses, disbursements, assessments, claims, losses, damages, penalties, actions, suits, judgments and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from the following:
(i) the inaccuracy of factual information furnished to ALPS by the Trust or the Fund’s investment adviser or custodian or any authorized third party on behalf of the Fund;
(ii) any reasonable error of judgment or mistake of law or for any loss suffered by the Trust in connection with the matters to which this Agreement relates;
(iii) ALPS’ reliance on any instruction, direction, notice, instrument or other information provided by the Trust or the Fund’s investment adviser or custodian or any authorized third party on behalf of the Fund that ALPS reasonably believes to be genuine;
(iv) failure to satisfy requests to cancel or amend payment orders, if ALPS receives such requests without reasonable time to comply with such requests;
(v) failure to detect any erroneous payment order, provided that ALPS complies with the payment order instructions as received and with the Security Procedure (as defined below);
(vi) lost interest with respect to the refundable amount of an unauthorized payment order, unless ALPS is notified of the unauthorized payment order within 30 days of notification by ALPS of the acceptance of such payment order; or
(vii) any other action or omission to act which ALPS properly takes in connection with the provision of services to the Fund pursuant to this Agreement.
(c) ALPS shall in...
Standard of Care; Limitation of Liability; Indemnification. (a) ALPS shall be obligated to act in good faith and to exercise commercially reasonable care and diligence in the performance of its duties under this Agreement.
(b) In the absence of willful misfeasance, bad faith, negligence, or reckless disregard by ALPS in the performance of its duties, obligations, or responsibilities set forth in this Agreement, ALPS and its affiliates, including their respective officers, directors, agents, and employees, shall not be liable for, and the Fund agrees to indemnify, defend and hold harmless such persons from, all taxes, charges, expenses, assessments, claims, and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from the following:
(i) the inaccuracy of factual information furnished to ALPS by the Fund or the Fund’s investment adviser, custodians, or other service providers;
(ii) any untrue statement of a material fact or omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law, in any registration statement, prospectus, statement of additional information, shareholder report, or other information filed or made public by the Fund (as amended from time to time), except to the extent the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of ALPS;
(iii) any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates;
(iv) losses, 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, war, terrorism, riot, fire, flood, sabotage, labor disputes, elements of nature, or non-performance by a third party;
(v) ALPS’ reliance on any instruction, direction, notice, instrument or other information that ALPS reasonably believes to be genuine;
(vi) loss of data or service interruptions caused by equipment failure; or
(vii) any other action or omission to act which ALPS takes in connection with the provision of services to the Fund.
(c) ALPS shall indemnify and hold harmless the Fund, the Fund’s investment adviser and their respective officers, directors, agents,...
Standard of Care; Limitation of Liability; Indemnification. (a) In performing all responsibilities delegated to it under this Agreement (including without limitation in regard to its capacity as Foreign Custody Manager), the Custodian agrees to exercise reasonable care, prudence and diligence and shall not be liable for any damages arising out of the Custodian’s performance of or failure to perform its duties under this Agreement except to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s willful misfeasance, bad faith, negligence or otherwise from a breach of this Agreement.
(b) Without limiting the generality of the foregoing or of any other provision of this Agreement, (i) the Custodian shall not be liable so long as and to the extent that it is in the exercise of reasonable care, for any defect in the title, validity or genuineness of any property or in the evidence of title thereto received by it or delivered by it pursuant to this Agreement, (ii) the Custodian shall not be liable for losses suffered by any of the Funds due to factors beyond the Custodian’s reasonable control (including acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrection, war, riots, terrorism, nationalization or expropriation, currency restrictions, or failure of the mails, transportation, communication or power supply), provided that the Custodian has acted in accordance with the provisions of Section 2.11 above. Further, the Custodian shall not be liable for the validity or invalidity or authority or lack thereof of any Oral Instruction or Written Instruction delivered in accordance with Section 2.3(b) hereof.
(c) The Custodian shall be entitled to receive at its own expense and act upon advice of counsel on all matters, and shall not be liable for any action taken or omitted in good faith pursuant to the advice of counsel for the applicable Fund or (at the expense of the Custodian) such other counsel.
(d) The applicable Fund shall indemnify and hold harmless the Custodian and its affiliates from all taxes, charges, assessments, claims and liabilities (including, without limitation, liabilities arising under the Federal Securities Laws and any state or foreign securities and blue sky laws, and amendments thereto), and expenses, including without limitation reasonable attorneys’ fees and disbursements, arising directly from any action or omission to act which the Custodian or its affiliate takes in accordance with th...
Standard of Care; Limitation of Liability; Indemnification. (a) Except as otherwise expressly provided herein, Securities Intermediary and Pledge Collateral Agent shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys’ fees (“Losses”) incurred by or asserted against Pledgor or Secured Party, except those Losses arising out of the gross negligence or willful misconduct of Securities Intermediary or Pledge Collateral Agent, respectively. Neither Securities Intermediary nor Pledge Collateral Agent shall have any liability whatsoever for the action or inaction of any Depository. In no event shall Securities Intermediary or Pledge Collateral Agent be liable to Pledgor, Secured Party or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Securities Intermediary or Pledge Collateral Agent be liable:
(i) for acting in accordance with any Written Instructions actually received by Securities Intermediary or Pledge Collateral Agent and reasonably believed by Securities Intermediary or Pledge Collateral Agent, respectively, to have been given by an Authorized Person of Secured Party;
(ii) for conclusively presuming that all disbursements of cash or deliveries of securities directed by Secured Party by a Written Instruction are in accordance with this Agreement, the Pledge Agreement or the Indemnification Provisions, as the case may be,
(iii) for holding property in any particular country, including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or securities or market conditions which prevent the transfer of property or execution of securities transactions or affect the value of property; or
(iv) for the insolvency of any depository or for any Indemnification Collateral or Pledge Collateral held by such depository; provided, however, that Securities Intermediary or Pledge Collateral Agent has not acted with gross negligence or engaged in willful misconduct with respect to the specific Loss against which indemnification is sought.
(b) Securities Intermediary and Pledge Collateral Agent each shall have the right to appoint agents in connection with any of their respective duties hereunder, and the Securities Intermediary and Pledge Collateral Agent shall not be liable for any action ta...
Standard of Care; Limitation of Liability; Indemnification. (a) Foreside shall be under no duty to take any action except as specifically set forth herein or as may be specifically agreed to by Foreside in writing. Foreside shall use its best judgment and efforts in rendering the services described in this Agreement and shall not be liable to the Fund Company, any Fund or any of the Funds’ shareholders for any action or inaction of Foreside or the CCO or AMLO relating to any event whatsoever in the absence of bad faith, reckless disregard, gross negligence or willful misfeasance. Further, neither Foreside nor the CCO or AMLO shall be liable to the Fund Company, any Fund or any of the Funds’ shareholders for any action taken, or failure to act, in good faith reliance upon: (i) the advice and opinion of Fund Company counsel; and/or (ii) any certified copy of any resolution of the Board. Neither Foreside nor the CCO or AMLO shall be under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any statement, oral or written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any other document or instrument which Foreside and/or the CCO and/or the AMLO reasonably believe(s) in good faith to be genuine.
(b) The Fund Company agrees to indemnify and hold harmless Foreside, its affiliates and each of their respective directors, officers, employees and agents and any person who controls Foreside within the meaning of Section 15 of the Securities Act (any of Foreside, its affiliates, their respective officers, employees, agents and directors or such control persons, for purposes of this paragraph, a “Foreside Indemnitee”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in connection therewith) arising out of or based upon (i) Foreside’s performance of its duties under this Agreement in compliance with this Agreement and laws applicable to Foreside, or (ii) the breach of any obligation, representation or warranty under this Agreement by the Fund Company. In no case (i) is the indemnity of the Fund Company in favor of any Foreside Indemnitee to be deemed to protect the Foreside Indemnitee against any liability to which the Foreside Indemnitee would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence i...
Standard of Care; Limitation of Liability; Indemnification. (a) FCS shall be under no duty to take any action except as specifically set forth herein or as may be specifically agreed to by FCS in writing. FCS shall use its best judgment and efforts in rendering the services described in this Agreement. FCS shall not be liable to the Fund or any of the Fund’s stockholders for any action or inaction of FCS relating to any event whatsoever in the absence of bad faith, reckless disregard, negligence or willful misfeasance in the performance of FCS’ duties or obligations under this Agreement. Further, FCS shall not liable to the Fund or any of the Fund’s stockholders for any action taken or failure to act in good faith reliance upon:
(i) the advice and opinion of Fund counsel; and
(ii) any certified copy of any resolution of the Board; and FCS shall not be under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any statement, oral or written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any other document or instrument which FCS reasonably believes in good faith to be genuine.
(b) The Fund agrees to indemnify and hold harmless FCS, its employees, agents, trustees, officers and managers and any person who controls FCS within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (“FCS Indemnitees”), against and from any and all claims, demands, actions, suits, judgments, administrative proceedings or investigations, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out of or in any way related to FCS’ actions taken or failures to act with respect to the Fund in connection with the performance of any duties or obligations under this Agreement (a “FCS Claim”); provided, however, that nothing contained herein shall entitle a FCS Indemnitee to indemnification with respect to any FCS Claim arising from FCS’ own bad faith, reckless disregard, negligence or willful malfeasance, or breach of this Agreement . For purposes of this Agreement, FCS’ bad faith, willful malfeasance, or reckless disregard shall not include any action taken or not taken by FCS consistent with the last sentence of Section 3(a). Further, the Fund shall not be required to indemnify any FCS Indemnitee if, prior to confessing any FCS Claim against the FCS Indemnitee, FCS or the FCS Indemnitee does not give the...
Standard of Care; Limitation of Liability; Indemnification. (a) ALPS shall be obligated to act in good faith and to exercise commercially reasonable care and diligence in the performance of its duties under this Agreement.
(b) In the absence of willful misfeasance, bad faith, negligence, or reckless disregard by ALPS in the performance of its duties, obligations, or responsibilities set forth in this Agreement, ALPS and its affiliates, including their respective officers, trustees, directors, agents, and employees, shall not be liable for, and the Fund agrees to indemnify, defend and hold harmless such persons from, all taxes, charges, expenses, assessments, claims, and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from the following:
(i) the inaccuracy of factual information furnished to ALPS by the Fund or the Fund’s investment adviser, custodians, or other service providers;
(ii) any untrue statement of a material fact or omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law, in any registration statement, prospectus, statement of additional information, shareholder report, repurchase offer notification or other information filed or made public by the Fund (as amended from time to time), except to the extent the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of ALPS;
(iii) any wrongful act of the Fund or any of its employees;
(iv) any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates;
(v) losses, 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, war, terrorism, riot, fire, flood, sabotage, labor disputes, elements of nature, or non-performance by a third party;
(vi) ALPS’ reliance on any instruction, direction, notice, instrument or other information that ALPS reasonably believes to be genuine;
(vii) any liability of ALPS resulting from a representation, covenant or warranty that ALPS makes, or any indemnification that ALPS provides, on behalf of the Trust or a Fund in an intermediary agreement relating to a Fund;
(...
Standard of Care; Limitation of Liability; Indemnification. (a) Administrator shall be obligated to act in good faith and to exercise commercially reasonable care and diligence in the performance of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, Administrator, its affiliates and each of their respective directors, officers, control persons, employees and agents (any of Administrator, its affiliates, their respective officers, employees, agents and directors or such control persons, an “Admin Associate”) shall have no liability to the Trust or any of the Trust’s shareholders for any action or inaction of an Admin Associate except to the extent when arising directly from the bad faith, reckless disregard, negligence or willful misfeasance of an Admin Associate taken with respect to this Agreement.
(c) Except when arising directly from the bad faith, reckless disregard, negligence or willful misfeasance of an Admin Associate taken in connection to this Agreement, the Trust agrees to indemnify and hold harmless an Admin Associate against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in connection therewith) of an Admin Associate related to, arising out of or based upon (i) this Agreement or any activity related to or taken under this Agreement, or (ii) the breach of any obligation, representation or warranty under this Agreement by the Trust.
(d) Administrator agrees to indemnify and hold harmless the Trust, and each of its trustees and officers (for purposes of this paragraph, the Trust and each of its trustees and officers and its controlling persons are collectively referred to as the “Trust Indemnitees”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in connection therewith) arising directly out of an Admin Associate’s bad faith, reckless disregard, negligence, or willful misfeasance taken in connection to this Agreement. In no case is the indemnity of Administrator in favor of any Trust Indemnitee to be deemed to protect any Trust Associate against any liability to which such Trust Associate would otherwise be subject by reason of bad faith, reckless disregard, negligence or willful misfeasance in the performance of its obligations and duties under this Ag...
Standard of Care; Limitation of Liability; Indemnification. The duties of the BISYS shall be confined to those expressly set forth herein, and to its obligations as fund accountant. BISYS shall comply with all laws applicable to it and shall exercise reasonable care in the performance of all of its obligations under this Agreement, but shall not be liable to the Trust for any action taken or omitted by BISYS in the absence of bad faith, willful misfeasance, negligence or from reckless disregard by it of its obligations and duties. BISYS assumes no responsibility hereunder, and shall not be liable, for any damages, loss of data, delay or other loss whatsoever caused by events beyond its reasonable control. The Trust agrees to indemnify and hold harmless BISYS, its employees, agents, directors, officers and nominees from and against any and all claims, demands, actions and suits, whether groundless or otherwise, and from and against any and all judgments, liabilities, losses, damages, costs, charges, fines, assessments, reasonable fees of counsel selected as specified below and other reasonable expenses (collectively, “Losses”) arising out of or in any way relating to BISYS’ performance of Services under this Agreement or based, if applicable, upon reasonable reliance on information, records, instructions or requests given or made to BISYS by the Trust or the investment adviser to the Trust, and on any information provided by any custodian or any Service Provider to the Trust; provided that this indemnification shall not apply to actions or omissions of BISYS in cases of its own bad faith, willful misfeasance, negligence or the reckless disregard of its obligations and duties; and further provided that BISYS shall give the Trust written notice of and reasonable opportunity to defend against any such claim in its own name or in the name of BISYS. BISYS shall indemnify, defend, and hold harmless the Trust, its employees, agents, trustees, officers and nominees from and against Losses resulting directly and proximately from BISYS’ willful misfeasance, bad faith, negligence or reckless disregard of its obligations and duties with respect to the performance of Services under this Agreement, including the Schedules and Exhibits hereto. The rights hereunder shall include the right to reasonable advances of defense expenses in the event of any pending or threatened litigation with respect to which indemnification hereunder may ultimately be merited. In order that the indemnification provision contained herein shall apply, ho...
Standard of Care; Limitation of Liability; Indemnification. (a) ALPS shall be obligated to act in good faith and to use its best efforts in the performance of its duties under this Agreement.
(b) In the absence of willful misfeasance, bad faith, negligence, or reckless disregard by ALPS in the performance of its duties, obligations, or responsibilities set forth in this Agreement, ALPS and its affiliates, including their respective officers, directors, agents, and employees, shall not be liable for, and the Trust agrees to indemnify, defend and hold harmless such persons from, all taxes, charges, expenses, assessments, claims, and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from the following:
(i) the inaccuracy of factual information furnished to ALPS by the Trust (other than from an employee or other affiliated person of ALPS who may otherwise be an authorized representative or agent of the Trust) or the Trust’s investment adviser, custodians, or other service providers;
(ii) any untrue statement of a material fact or omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law, in any registration statement, prospectus, statement of additional information, shareholder report, or other information filed or made public by the Trust (as amended from time to time), except to the extent the statement or omission was made in reliance upon, and in conformity with, information furnished to the Trust by or on behalf of ALPS;
(iii) any reasonable error of judgment or mistake of law or for any loss suffered by the Trust in connection with the matters to which this Agreement relates;
(iv) losses, 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, war, terrorism, riot, fire, flood, sabotage, labor disputes, elements of nature, or non-performance by a third party (each, an “Event”); provided, however, that ALPS implemented a Business Interruption Plan maintained in accordance with Section 16 of this Agreement to the extent reasonably practicable in light of the Event;
(v) ALPS’ reliance on any instruction, direction, notice, instrument or other information provided by the Trust (other than from...
