Common use of Standard of Care; Limitation of Liability; Indemnification Clause in Contracts

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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 46 contracts

Samples: Custodian Services Agreement (Western Asset Middle Market Debt Fund Inc.), Custodian Services Agreement (ClearBridge Energy MLP Total Return Fund Inc.), Custodian Services Agreement (Legg Mason BW Global Income Opportunities Fund Inc.)

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Standard of Care; Limitation of Liability; Indemnification. (a) In performing all its 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 such as a person having responsibility for the safekeeping of assets of management investment companies registered under the 1940 Act would exercise 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 any losses suffered by any of the Funds due to items within Country Risk or factors beyond the Custodian’s reasonable control (including acts of civil or military authority, national emergencies, labor difficultiesgeneral work stoppages, 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; and provided further that, for the avoidance of doubt, a Fund’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Custodian’s aforementioned failure to perform. 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 without liability for any loss, damage or expense caused by or resulting from the insolvency of any Domestic Sub-Custodian or Foreign Sub-Custodian that is not a wholly-owned subsidiary of the Custodian; provided, however, that the foregoing exculpation of the Custodian with respect to the insolvency of a particular Foreign Sub-Custodian shall not be applicable if the Custodian fails to comply with its obligations under this Agreement or as a Foreign Custody Manager pursuant to Rule 17f-5 with respect to such Foreign Sub-Custodian. For the avoidance of doubt, if the Custodian has met its standard of care hereunder and has fulfilled its obligations as a Foreign Custody Manager pursuant to Rule 17f-5 with respect to a Foreign Sub-Custodian, then the Custodian shall be without liability for any loss, damage or expense caused by or resulting from the insolvency of such Foreign Sub-Custodian. (d) The Custodian shall be without liability for any loss, damage or expense caused by or resulting from the insolvency of any U.S. Clearing System or Foreign Securities Depository; provided, however, that the foregoing exculpation of the Custodian with respect to the insolvency of any Foreign Securities Depository shall not be applicable if the Custodian fails to comply with its obligations under this Agreement or under Rule 17f-7 with respect to such Foreign Securities Depository. For the avoidance of doubt, if the Custodian has met its standard of care hereunder and has fulfilled its obligations under Rule 17f-7 with respect to a Foreign Securities Depository, then the Custodian shall be without liability for any loss, damage or expense caused by or resulting from the insolvency of such Foreign Securities Depository. (e) 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 reasonably taken or omitted in good faith and without negligence pursuant to the advice of counsel for the applicable Fund or (at the expense of the Custodian) such other counsel. (df) 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 disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by the Custodian against the Fund arising from the obligations of the Fund hereunder), arising directly from any action or omission to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. Notwithstanding the foregoing, in no event shall a Fund incur liability to the Custodian or its affiliates if the Fund is prevented, forbidden or delayed from performing, or omits to perform, any act or thing which this Agreement provides shall be performed or omitted to be performed, by reason of factors beyond the Fund’s reasonable control (including acts of civil or military authority, national emergencies, general work stoppages, 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, however, that for the avoidance of doubt, the Custodian’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Fund’s aforementioned failure to perform. (eg) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by any Fund against the Custodian arising from the obligations of the Custodian hereunder), to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. (h) Upon the occurrence of any event relating to the services provided under this Agreement that causes or may cause any loss, damage or expense to one or more Funds or Portfolios, the Custodian (i) shall reasonably promptly notify each such Fund or Portfolio of the occurrence of such event and (ii) shall use (and shall use its reasonable best efforts to cause any applicable agent or domestic or foreign sub-custodian to use) commercially reasonable efforts and take reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to each such Fund or Portfolio. (i) The Custodian will maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as may be appropriate, in each case in a commercially reasonable amount sufficient to cover its potential liabilities under this Agreement. The Custodian agrees to provide the Funds with summaries of its applicable insurance for errors and omissions insurance and fidelity bondscoverage, and agrees to provide updated summaries annually monthly or as requested by the Funds. (fj) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 22 contracts

Samples: Custodian Services Agreement, Custodian Services Agreement (Western Asset Emerging Markets Debt Fund Inc.), Custodian Services Agreement (Western Asset Global High Income Fund Inc.)

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 The Fund Accounting Agent shall be obligated to exercise in the performance of its duties hereunder reasonable care, prudence and diligence such as a person having responsibility for the provision of accounting services to management investment companies registered under the 1940 Act would exercise, to act in good faith and to use commercially reasonable efforts in performing services provided for under this Agreement, and shall not be liable for any damages arising out of the Custodian’s its 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 CustodianFund Accounting Agent’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 Fund Accounting Agent shall not be liable for losses suffered by any of the Funds due to factors beyond its reasonable control (including acts of civil or military authority, national emergencies, general work stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the Custodianmails, transportation, communication or power supply), provided that the Fund Accounting Agent has acted in accordance with the provisions of Section 3(f) above; and provided further that, for the avoidance of doubt, a Fund’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Fund Accounting Agent’s aforementioned failure to perform, and (ii) the Fund Accounting Agent shall not be liable for the validity or invalidity or authority or lack thereof of any Proper Instruction, except as set forth in Section 5(b) and (c). (c) The applicable Fund agrees to indemnify and hold harmless the Fund Accounting Agent and its affiliates from all taxes, charges, assessments, claims and liabilities (including, without limitation, liabilities arising under the Securities Laws and any state or foreign securities and blue sky laws, and amendments thereto), and expenses, including without limitation reasonable attorneys’ fees and reasonable disbursements (including, without limitation, those incurred in asserting any claim by the Fund Accounting Agent against the Fund arising from the obligations of the Fund hereunder), arising from any action or omission to act which the Fund Accounting Agent or its affiliate takes in accordance with the terms of this Agreement; provided that the Fund Accounting Agent and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Fund Accounting Agent’s or its affiliate’s own willful misfeasance, bad faith, negligence or breach of this Agreement. Notwithstanding the foregoing, in no event shall a Fund incur liability to the Fund Accounting Agent or its affiliates if the Fund is prevented, forbidden or delayed from performing, or omits to perform, any act or thing which this Agreement provides shall be performed or omitted to be performed, by reason of factors beyond the Fund’s reasonable control (including acts of civil or military authority, national emergencies, labor difficultiesgeneral work stoppages, 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, provided however, that for the Custodian has acted in accordance with the provisions avoidance of Section 2.11 above. Furtherdoubt, 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 Fund Accounting Agent’s failure to perform its obligations under this Agreement 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 excused to the advice of counsel for extent that such failure to perform is caused by or results from the applicable Fund or (at the expense of the Custodian) such other counselFund’s aforementioned failure to perform. (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 Accounting Agent agrees to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the CustodianFund Accounting Agent’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by any Fund against the Fund Accounting Agent arising from the obligations of the Fund Accounting Agent hereunder), to the extent that such damages are reasonably foreseeable and arise directly out of the CustodianFund Accounting Agent’s or any of its affiliates’ affiliate’s own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any a Fund’s or its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) Upon the occurrence of any event that causes or may cause any loss, damage or expense to one or more Funds or Portfolios, the Fund Accounting Agent (i) shall reasonably promptly notify each such Fund or Portfolio of the occurrence of such event and (ii) shall use commercially reasonable efforts and take reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to each such Fund or Portfolio. (f) The Fund Accounting Agent will maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as may be appropriate, in each case in a commercially reasonable amount sufficient to cover its potential liabilities under this Agreement. The Custodian Fund Accounting Agent agrees to provide the Funds with summaries of its applicable insurance for errors and omissions insurance and fidelity bondscoverage, and agrees to provide updated summaries annually monthly or as requested by the Funds. (fg) In order that the indemnification provisions contained in this Section 5 6 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 16 contracts

Samples: Fund Accounting Services Agreement, Fund Accounting Services Agreement (Western Asset Emerging Markets Debt Fund Inc.), Fund Accounting Services Agreement (Legg Mason Partners Variable Equity Trust)

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 The Fund Accounting Agent shall be obligated to exercise in the performance of its duties hereunder reasonable care, prudence and diligence such as a person having responsibility for the provision of accounting services to management investment companies registered under the 1940 Act would exercise, to act in good faith and to use commercially reasonable efforts in performing services provided for under this Agreement (the “Standard of Care”), and shall not be liable for any damages arising out of the Custodian’s its 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 CustodianFund Accounting Agent’s willful misfeasance, bad faith, negligence or otherwise from a breach of this Agreement. Without limiting the foregoing, the Fund Accounting Agent shall not be liable for any damages arising out of any matter with respect to which the Fund Accounting Agent is otherwise relieved of liability or entitled to be held harmless as provided elsewhere in this Agreement. In no event shall a party to this Agreement be liable for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. For the avoidance of doubt, net asset value (NAV) error losses under the terms of the Fund’s NAV error correction policy (as provided to the Fund Accounting Agent by the Fund) shall be deemed direct damages for purposes of this Agreement and not consequential damages under this Section 7(a). (b) Without limiting the generality of the foregoing or of any other provision of this AgreementAgreement (including without limitation Section 3(g) above), (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 Fund Accounting Agent shall not be liable for losses suffered by any of the Funds due to factors beyond the Custodian’s its reasonable control (including acts of civil or military authority, national emergencies, labor difficultiesgeneral work stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riots, terrorism, nationalization or expropriation, currency restrictions, riots 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. Furtherthat, the Custodian shall not be liable for the validity avoidance of doubt, a Fund’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or invalidity or authority or lack thereof of any Oral Instruction or Written Instruction delivered in accordance with Section 2.3(b) hereofresults from the Fund Accounting Agent’s aforementioned failure to perform. (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 agrees to indemnify and hold harmless the Custodian Fund Accounting Agent and its affiliates from all taxes, charges, assessments, claims claims, damages 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 costs and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by the Fund Accounting Agent against the Fund arising from the obligations of the Fund hereunder), arising directly from any action or omission to act which the Custodian Fund Accounting Agent or its affiliate takes in accordance with the terms of this Agreement or any omission by the Fund Accounting Agent to act or any other matter with respect to which the Fund Accounting Agent is otherwise relieved of liability or entitled to be held harmless as provided elsewhere in this Agreement; provided that the Custodian Fund Accounting Agent and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the CustodianFund Accounting Agent’s own, or its affiliate’s or any of its affiliates’ own agent’s (for whose actions the Fund Accounting Agent is responsible under this Agreement) willful misfeasance, bad faith, negligence or breach of this Agreement. Notwithstanding the foregoing, in no event shall a Fund incur liability to the Fund Accounting Agent or its affiliates if the Fund is prevented, forbidden from or delayed in performing, or omits to perform, any act or thing which this Agreement provides shall be performed or omitted to be performed by the Fund, by reason of factors beyond the Fund’s reasonable control (including acts of civil or military authority, national emergencies, general work stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply); provided, however, that for the avoidance of doubt, the Fund Accounting Agent’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Fund’s aforementioned failure to perform. (ed) The Custodian shall Fund Accounting Agent agrees to indemnify and hold harmless the Funds from all taxes, charges, assessments, claims claims, damages and liabilities arising directly from the CustodianFund Accounting Agent’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and costs and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by any Fund against the Fund Accounting Agent arising from the obligations of the Fund Accounting Agent hereunder), to the extent that such damages are reasonably foreseeable and arise directly out of the CustodianFund Accounting Agent’s own, or its affiliate’s or any of its affiliates’ own agent’s (for whose actions the Fund Accounting Agent is responsible under this Agreement) willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any a Fund’s or its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) Upon the occurrence of any event that causes or may cause any loss, damage or expense to one or more Funds or Portfolios, the Fund Accounting Agent (i) shall reasonably promptly notify each such Fund or Portfolio of the occurrence of such event and (ii) shall use commercially reasonable efforts and take reasonable steps under the circumstances to attempt to mitigate the effects of such event and avoid continuing harm to each such Fund or Portfolio. Upon the occurrence of any event that causes or may cause any loss, damage or expense to the Fund Accounting Agent, the applicable Fund (i) shall reasonably promptly notify the Fund Accounting Agent of the occurrence of such event and (ii) shall use commercially reasonable efforts and take reasonable steps under the circumstances to attempt to mitigate the effects of such event and avoid continuing harm to the Fund Accounting Agent. (f) The Fund Accounting Agent will maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as the Fund Accounting Agent may deem appropriate, in each case in a commercially reasonable amount deemed by the Fund Accounting Agent to be sufficient to cover its potential liabilities under this Agreement, including without limitation cyberliability insurance coverage deemed by the Fund Accounting Agent to be appropriate (with due regard for industry standards, if any) to address damages arising from a Security Breach (as defined in Section 10(i)). The Custodian Fund Accounting Agent agrees to provide the Funds with summaries of its applicable insurance for errors and omissions insurance and fidelity bondscoverage, and agrees to provide updated summaries annually monthly or as requested by the Funds. (fg) In order that the indemnification provisions contained in this Section 5 7 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have right to control the defense of the claim, and the party seeking indemnification shall have the option to participate with the party seeking indemnification in the defense of such claim, at its own cost and expense. The party seeking indemnification will cooperate reasonably, at the indemnifying party’s expense, with the indemnifying party in the defense of such claim; provided, however, that the party seeking indemnification shall not be required to take any action that would impair any claim it may have against the indemnifying party. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent. The indemnifying party shall not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the party seeking indemnification, which consent shall not be unreasonably withheld, delayed or conditioned.

Appears in 16 contracts

Samples: Fund Accounting Services Agreement (Franklin Lexington Private Markets Fund), Fund Accounting Services Agreement (Western Asset Diversified Income Fund), Fund Accounting Services Agreement (ActiveShares ETF Trust)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all its 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 such as a person having responsibility for the safekeeping of assets of management investment companies registered under the 1940 Act would exercise (“Standard of Care”) 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 Agreementforegoing, (i) the Custodian shall not be liable so long for any damages arising out of any matter with respect to which the Custodian is otherwise relieved of liability as and to the extent that it is provided elsewhere in the exercise Agreement. In no event shall a party to this Agreement be liable for any special, indirect or consequential damages, or lost profits or loss of reasonable carebusiness, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. (b) The Custodian shall not be liable 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. Without limiting the Custodian’s obligations under Section 2.11 of this Agreement, (ii) the Custodian shall not be liable for any losses suffered by any of the Funds due to items within Country Risk or factors beyond the Custodian’s reasonable control (including acts of civil or military authority, national emergencies, labor difficultiesgeneral work stoppages, 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, for the avoidance of doubt, a Fund’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Custodian has acted in accordance with the provisions of Section 2.11 aboveCustodian’s aforementioned failure to perform. 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 without liability for any loss, damage or expense caused by or resulting from the insolvency of any Domestic Sub-Custodian or Foreign Sub-Custodian that is not a majority-owned subsidiary of the Custodian; provided, however, that the foregoing exculpation of the Custodian with respect to receive at the insolvency of a particular Foreign Sub-Custodian shall not be applicable if the Custodian fails to comply with its obligations as a Foreign Custody Manager pursuant to Rule 17f-5 with respect to such Foreign Sub-Custodian. (d) Without limiting the Custodian’s responsibilities set forth in Section 4.5 hereof, the Custodian shall be without liability for any loss, damage or expense caused by or resulting from the action, inaction or insolvency of any U.S. Clearing System or Foreign Securities Depository; provided, however, that the foregoing exculpation of the Custodian with respect to the insolvency of any Foreign Securities Depository shall not be applicable if the Custodian fails to comply with its obligations under Section 4.5 of this Agreement or under Rule 17f-7 with respect to such Foreign Securities Depository. (e) At any time, the Custodian may request Written Instructions from a Fund and may seek advice from legal counsel for the Fund, or its own expense and act upon advice of counsel on all matterslegal counsel, with respect to any matter arising in connection with this Agreement, and it shall not be liable for any action taken or omitted not taken or suffered by it in good faith pursuant to in accordance with such Written Instructions or in accordance with the advice opinion of counsel for the applicable Fund or (at the expense of for the Custodian) , provided that the Custodian at its own expense communicates to the Fund such other counselopinion of counsel to the Custodian within a reasonable period of time prior to taking the action in question. Written Instructions requested by the Custodian will be provided by a Fund within a reasonable period of time. (df) The applicable Fund shall indemnify and hold harmless the Custodian and its affiliates from all taxes, charges, assessments, claims claims, damages 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 costs and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by the Custodian against the Fund arising from the obligations of the Fund hereunder), arising directly from any action or omission to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement or any omission by the Custodian to act or any other matter with respect to which the Custodian is otherwise relieved of liability or entitled to be held harmless as provided elsewhere in the Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s own, or any of its affiliates’ own affiliate’s or agent’s (for whose actions the Custodian is responsible under this Agreement) willful misfeasance, bad faith, negligence or breach of this Agreement. (eg) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims claims, damages and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and costs and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by any Fund against the Custodian arising from the obligations of the Custodian hereunder), to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s own, or any of its affiliates’ own affiliate’s or agent’s (for whose actions the Custodian is responsible under this Agreement) willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. (h) Upon the occurrence of any event relating to the services provided under this Agreement that causes or may cause any loss, damage or expense to one or more Funds or Portfolios, the Custodian (i) shall reasonably promptly notify each such Fund or Portfolio of the occurrence of such event and (ii) shall use (and shall use its reasonable best efforts to cause any applicable agent or domestic or foreign sub-custodian to use) commercially reasonable efforts and take reasonable steps under the circumstances to attempt to mitigate the effects of such event and avoid continuing harm to each such Fund or Portfolio. Upon the occurrence of any event that causes or may cause any loss, damage or expense to the Custodian, the applicable Fund (i) shall reasonably promptly notify the Custodian of the occurrence of such event and (ii) shall use commercially reasonable efforts and take reasonable steps under the circumstances to attempt to mitigate the effects of such event and avoid continuing harm to the Custodian. (i) The Custodian will maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as the Custodian may deem appropriate, in each case in a commercially reasonable amount deemed by the Custodian to be sufficient to cover its potential liabilities under this Agreement, including without limitation cyberliability insurance coverage deemed by the Custodian to be appropriate (with due regard for industry standards, if any) to address damages arising from a Security Breach (as defined in Section 10(i)). The Custodian agrees to provide the Funds with summaries of its applicable insurance for errors and omissions insurance and fidelity bondscoverage, and agrees to provide updated summaries annually monthly or as requested by the Funds. (fj) In order that the indemnification provisions contained in this Section 5 8 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option right to participate with control the defense of the claim, and the party seeking indemnification shall have the option to participate in the defense of such claim, at its own cost and expense. The party seeking indemnification will cooperate reasonably, at the indemnifying party’s expense, with the indemnifying party in the defense of such claim; provided, however, that the party seeking indemnification shall not be required to take any action that would impair any claim it may have against the indemnifying party. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent. The indemnifying party shall not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the party seeking indemnification, which consent shall not be unreasonably withheld, delayed or conditioned.

Appears in 14 contracts

Samples: Custodian Services Agreement (ActiveShares ETF Trust), Custodian Services Agreement (Clarion Partners Real Estate Income Fund Inc.), Custodian Services Agreement (Legg Mason Partners Premium Money Market Trust)

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 '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 '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 '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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s 's or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s 's failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys' fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s 's or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s 's own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s 's prior written consent.

Appears in 9 contracts

Samples: Custodian Services Agreement (Legg Mason Partners Lifestyle Series, Inc.), Custodian Services Agreement (Legg Mason Partners Equity Funds), Custodian Services Agreement (Citifunds Institutional Trust)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all its 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 such as a person having responsibility for the safekeeping of assets of management investment companies registered under the 1940 Act would exercise (“Standard of Care”) 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 Agreementforegoing, (i) the Custodian shall not be liable so long for any damages arising out of any matter with respect to which the Custodian is otherwise relieved of liability as and to the extent that it is provided elsewhere in the exercise Agreement. In no event shall a party to this Agreement be liable for any special, indirect or consequential damages, or lost profits or loss of reasonable carebusiness, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. (b) The Custodian shall not be liable 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. Without limiting the Custodian’s obligations under Section 2.11 of this Agreement, (ii) the Custodian shall not be liable for any losses suffered by any of the Funds due to items within Country Risk or factors beyond the Custodian’s reasonable control (including acts of civil or military authority, national emergencies, labor difficultiesgeneral work stoppages, 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, for the avoidance of doubt, a Fund’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Custodian has acted in accordance with the provisions of Section 2.11 aboveCustodian’s aforementioned failure to perform. 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 without liability for any loss, damage or expense caused by or resulting from the insolvency of any Domestic Sub-Custodian or Foreign Sub-Custodian that is not a majority-owned subsidiary of the Custodian; provided, however, that the foregoing exculpation of the Custodian with respect to receive at the insolvency of a particular Foreign SubCustodian shall not be applicable if the Custodian fails to comply with its obligations as a Foreign Custody Manager pursuant to Rule 17f-5 with respect to such Foreign Sub-Custodian. (d) Without limiting the Custodian’s responsibilities set forth in Section 4.5 hereof, the Custodian shall be without liability for any loss, damage or expense caused by or resulting from the action, inaction or insolvency of any U.S. Clearing System or Foreign Securities Depository; provided, however, that the foregoing exculpation of the Custodian with respect to the insolvency of any Foreign Securities Depository shall not be applicable if the Custodian fails to comply with its obligations under Section 4.5 of this Agreement or under Rule 17f-7 with respect to such Foreign Securities Depository. (e) At any time, the Custodian may request Written Instructions from a Fund and may seek advice from legal counsel for the Fund, or its own expense and act upon advice of counsel on all matterslegal counsel, with respect to any matter arising in connection with this Agreement, and it shall not be liable for any action taken or omitted not taken or suffered by it in good faith pursuant to in accordance with such Written Instructions or in accordance with the advice opinion of counsel for the applicable Fund or (at the expense of for the Custodian) , provided that the Custodian at its own expense communicates to the Fund such other counselopinion of counsel to the Custodian within a reasonable period of time prior to taking the action in question. Written Instructions requested by the Custodian will be provided by a Fund within a reasonable period of time. (df) The applicable Fund shall indemnify and hold harmless the Custodian and its affiliates from all taxes, charges, assessments, claims claims, damages 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 costs and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by the Custodian against the Fund arising from the obligations of the Fund hereunder), arising directly from any action or omission to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement or any omission by the Custodian to act or any other matter with respect to which the Custodian is otherwise relieved of liability or entitled to be held harmless as provided elsewhere in the Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s own, or any of its affiliates’ own affiliate’s or agent’s (for whose actions the Custodian is responsible under this Agreement) willful misfeasance, bad faith, negligence or breach of this Agreement. (eg) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims claims, damages and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and costs and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by any Fund against the Custodian arising from the obligations of the Custodian hereunder), to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s own, or any of its affiliates’ own affiliate’s or agent’s (for whose actions the Custodian is responsible under this Agreement) willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. (h) Upon the occurrence of any event relating to the services provided under this Agreement that causes or may cause any loss, damage or expense to one or more Funds or Portfolios, the Custodian (i) shall reasonably promptly notify each such Fund or Portfolio of the occurrence of such event and (ii) shall use (and shall use its reasonable best efforts to cause any applicable agent or domestic or foreign sub-custodian to use) commercially reasonable efforts and take reasonable steps under the circumstances to attempt to mitigate the effects of such event and avoid continuing harm to each such Fund or Portfolio. Upon the occurrence of any event that causes or may cause any loss, damage or expense to the Custodian, the applicable Fund (i) shall reasonably promptly notify the Custodian of the occurrence of such event and (ii) shall use commercially reasonable efforts and take reasonable steps under the circumstances to attempt to mitigate the effects of such event and avoid continuing harm to the Custodian. (i) The Custodian will maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as the Custodian may deem appropriate, in each case in a commercially reasonable amount deemed by the Custodian to be sufficient to cover its potential liabilities under this Agreement, including without limitation cyberliability insurance coverage deemed by the Custodian to be appropriate (with due regard for industry standards, if any) to address damages arising from a Security Breach (as defined in Section 10(i)). The Custodian agrees to provide the Funds with summaries of its applicable insurance for errors and omissions insurance and fidelity bondscoverage, and agrees to provide updated summaries annually monthly or as requested by the Funds. (fj) In order that the indemnification provisions contained in this Section 5 8 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option right to participate with control the defense of the claim, and the party seeking indemnification shall have the option to participate in the defense of such claim, at its own cost and expense. The party seeking indemnification will cooperate reasonably, at the indemnifying party’s expense, with the indemnifying party in the defense of such claim; provided, however, that the party seeking indemnification shall not be required to take any action that would impair any claim it may have against the indemnifying party. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent. The indemnifying party shall not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the party seeking indemnification, which consent shall not be unreasonably withheld, delayed or conditioned.

Appears in 7 contracts

Samples: Custodian Services Agreement (Western Asset Global High Income Fund Inc.), Custodian Services Agreement (Western Asset Managed Municipals Fund Inc.), Custodian Services Agreement (Western Asset High Income Fund Ii Inc.)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all responsibilities delegated ALPS shall be obligated to it under this Agreement (including without limitation act in regard to its capacity as Foreign Custody Manager), the Custodian agrees good faith and to exercise commercially reasonable care, prudence care and diligence and shall not be liable for any damages arising out of in the Custodian’s performance of or failure to perform its duties under this Agreement except Agreement, including with regard to the extent processing of investments checks using mutually agreed upon procedures. The parties agree that such damages are reasonably foreseeable any encoding or payment processing errors shall be governed by this standard of care and arise directly out Section 4-209 of the Custodian’s Uniform Commercial Code is superseded by this Section 4 of this Agreement. (b) In the absence of willful misfeasance, bad faith, negligence or otherwise from a breach reckless disregard by ALPS in the performance of this Agreement. (b) Without limiting the generality of the foregoing its duties, obligations or of any other provision of responsibilities set forth in this Agreement, (i) the Custodian ALPS and its affiliates, including their respective officers, directors, agents and employees, 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 mattersfor, and shall not be liable for any action taken or omitted in good faith pursuant the Trust agrees 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 indemnify, defend and hold harmless the Custodian and its affiliates from such persons from, all taxes, charges, expenses, disbursements, assessments, claims claims, losses, damages, penalties, actions, suits, judgments 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, 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 Funds’ investment adviser or custodian or any authorized third party on behalf of the Funds; (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 Funds’ investment adviser or custodian or any authorized third party on behalf of the Funds 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 the Custodian or its affiliate ALPS properly takes in accordance connection with the terms provision of services to the Funds pursuant to this Agreement; provided that . (c) ALPS shall indemnify and hold harmless the Custodian Trust, the Funds’ investment adviser and its affiliates shall not be indemnified their respective officers, directors, agents and employees from and against any liability and 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 any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliatesindirectly from ALPSown willful misfeasance, bad faith, negligence or breach reckless disregard in the performance of its duties, obligations or responsibilities set forth in this Agreement. (ed) The Custodian Notwithstanding anything in this Agreement to the contrary, neither party shall indemnify and hold harmless be liable under this Agreement to the Funds from all taxesother party hereto for any punitive, chargesconsequential, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant special or indirect losses or damages. Any indemnification payable by a party to this Agreement (including, without limitation, liabilities arising under shall be net of insurance maintained by the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, indemnified party as of the time the claim giving rise to indemnity hereunder is alleged to have arisen to the extent that it covers such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Fundsclaim. (fe) In order that any case in which either party (the indemnification provisions contained in this Section 5 shall apply“Indemnifying Party”) may be asked to indemnify or hold the other party (the “Indemnified Party”) harmless, upon the assertion of Indemnified Party will notify the Indemnifying Party promptly after identifying any situation which it believes presents or appears likely to present a claim for which either party may be required indemnification against the Indemnifying Party although the failure to indemnify do so shall not prevent recovery by the other, the party seeking indemnification shall promptly notify the other party of such assertion, Indemnified Party and shall keep the other party Indemnifying Party advised with respect to all developments concerning such claimsituation. The party who may be required to indemnify Indemnifying Party shall have the option to participate with defend the party seeking indemnification Indemnified Party against any claim which may be the subject of this indemnification, and, in the event that the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying Party shall take over complete defense of the claim and the Indemnified Party shall sustain no further legal or other expenses in respect of such claim. The party seeking indemnification shall in no case Indemnified Party will not confess any claim or make any compromise in any case in which the other party may Indemnifying Party will be required asked to indemnify it provide indemnification, except with the other partyIndemnifying Party’s prior written consent.

Appears in 5 contracts

Samples: Transfer Agency and Services Agreement (Financial Investors Trust), Transfer Agency and Services Agreement (Financial Investors Trust), Transfer Agency and Services Agreement (Financial Investors Trust)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all responsibilities delegated ALPS shall be obligated to it act in good faith and to exercise commercially reasonable care and diligence in the performance of its duties under this Agreement (Agreement, including without limitation in 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 capacity as Foreign Custody Manager)duties, the Custodian agrees to exercise reasonable careobligations or responsibilities set forth in this Agreement, prudence ALPS and diligence 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 Funds’ investment adviser or custodian or any authorized third party on behalf of the Funds; (ii) any reasonable error of judgment or mistake of law or for any damages arising out loss suffered by the Funds in connection with the matters to which this Agreement relates; (iii) ALPS’s reliance on any instruction, direction, notice, instrument or other information provided by the Trust or the Funds’ investment adviser or custodian or any authorized third party on behalf of the Custodian’s performance of or Funds that ALPS reasonably believes to be genuine; (iv) failure to perform its duties under this Agreement except 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 extent that such damages are reasonably foreseeable and arise directly out refundable amount of an unauthorized payment order, unless ALPS is notified of the Custodianunauthorized payment order within thirty (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 Trust pursuant to this Agreement. (c) ALPS shall indemnify and hold harmless the Trust and the Funds’ investment adviser and their respective officers, directors, agents and employees from and against any and 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 ALPS’s willful misfeasance, bad faith, negligence or otherwise reckless disregard in the performance of its duties, obligations or responsibilities set forth in this Agreement. Notwithstanding anything herein to the contrary, with respect to “as of” adjustments, ALPS will not assume one hundred percent (100%) responsibility for losses resulting from “as ofs” due to clerical errors or misinterpretations of security holder instructions, but ALPS will discuss with the Trust ALPS accepting liability for an “as of” on a breach case-by-case basis and may accept financial responsibility for a particular situation resulting in a financial loss to the Trust where such loss is “material,” as hereinafter defined, and, under the particular facts at issue, ALPS, in its discretion, believes ALPS’s conduct was culpable and ALPS’s conduct is the sole cause of the loss. A loss is “material” for purposes of this Agreement. (bSection 4(c) Without limiting the generality of the foregoing or of any other provision of this Agreement, when it results in a pricing error on a given day which is (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 Agreementgreater than a negligible amount per security holder, (ii) equals or exceeds one ($.01) full cent per share times the Custodian shall not number of shares outstanding or (iii) equals or exceeds the product of one-half of one percent ( 1⁄2%) times the Funds’ net asset value per share times the number of shares outstanding (or, in case of (ii) or (iii), such other amounts as may be liable for losses suffered adopted by any applicable accounting or regulatory authorities from time to time). When ALPS concludes that it should contribute to the settlement of a loss, ALPS’s responsibility will commence with that portion of the Funds due to factors beyond loss over $0.01 per share, calculated on 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 basis of the mailstotal value of all shares owned by the affected portfolio (i.e., transportation, communication or power supply), provided that on 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 basis of the Custodian) such other counselvalue of the shares of the total portfolio, including all classes of that portfolio, not just those of the affected class). (d) The applicable Fund Notwithstanding anything in this Agreement to the contrary, neither party shall indemnify and hold harmless be liable under this Agreement to the Custodian and its affiliates from all taxesother party hereto for any punitive, chargesconsequential, assessments, claims and liabilities (including, without limitation, liabilities arising under special or indirect losses or damages. Any indemnification payable by a party to this Agreement shall be net of insurance maintained by 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 indemnified party as of the time the claim giving rise to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident indemnity hereunder is alleged to such liability) have arisen to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreementit covers such claim. (e) The Custodian shall In any case in which either party (the “Indemnifying Party”) may be asked to indemnify and or hold harmless the Funds from all taxesother party (the “Indemnified Party”) harmless, charges, assessments, claims and liabilities arising directly from the Custodian’s failure Indemnified Party will notify the Indemnifying Party promptly after identifying any situation which it believes presents or appears likely to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of present a claim for which either party may be required indemnification against the Indemnifying Party although the failure to indemnify do so shall not prevent recovery by the other, the party seeking indemnification shall promptly notify the other party of such assertion, Indemnified Party and shall keep the other party Indemnifying Party advised with respect to all developments concerning such claimsituation. The party who may be required to indemnify Indemnifying Party shall have the option to participate with defend the party seeking indemnification Indemnified Party against any claim which may be the subject of this indemnification, and, in the event that the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying Party shall take over complete defense of the claim and the Indemnified Party shall sustain no further legal or other expenses in respect of such claim. The party seeking indemnification shall in no case Indemnified Party will not confess any claim or make any compromise in any case in which the other party may Indemnifying Party will be required asked to indemnify it provide indemnification, except with the other partyIndemnifying Party’s prior written consent.

Appears in 5 contracts

Samples: Transfer Agency and Services Agreement (ALPS Series Trust), Transfer Agency and Services Agreement (ALPS Series Trust), Transfer Agency and Services Agreement (ALPS Series Trust)

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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent. (g) The provisions of this Section 8 shall survive termination of this Agreement.

Appears in 3 contracts

Samples: Custodian Services Agreement (Smith Barney Massachusetts Municipals Fund), Custodian Services Agreement (Travelers Series Fund Inc), Custodian Services Agreement (Smith Barney World Funds Inc)

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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys' fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s 's prior written consent.

Appears in 2 contracts

Samples: Custodian Services Agreement (Smith Barney Trust Ii), Custodian Services Agreement (Variable Annuity Portfolios)

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 an’ 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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 2 contracts

Samples: Custodian Services Agreement (Legg Mason Partners Aggressive Growth Fund, Inc.), Custodian Services Agreement (Legg Mason Partners Income Funds)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all the responsibilities delegated to it under this Agreement (including without limitation in regard to its capacity as Foreign Custody Manager), the Custodian agrees to exercise the reasonable care, prudence diligence and diligence expertise of a professional custodian having responsibility for the safekeeping of assets of investment companies registered under the 1940 Act, 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 from 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 Fund 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 aboveabove and the standard of care set forth above in this Section 8. 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) hereofInstruction. (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 counselcounsel as the Fund and the Custodian may agree upon. (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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds Fund from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise arising directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds Fund with summaries certificates of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries certificates annually or as requested by the FundsFund. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 2 contracts

Samples: Custodian Services Agreement (Consulting Group Capital Markets Funds), Custodian Services Agreement (Consulting Group Capital Markets Funds)

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Standard of Care; Limitation of Liability; Indemnification. (a) In performing all responsibilities delegated ALPS shall be obligated to it under this Agreement (including without limitation act in regard to its capacity as Foreign Custody Manager), the Custodian agrees good faith and to exercise commercially reasonable care, prudence care and diligence and shall not be liable for any damages arising out of in 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 Notwithstanding anything in this Agreement to the generality contrary ALPS and each of the foregoing its affiliates, members, shareholders, directors, officers, partners, employees, agents, successors or of any other provision of this Agreement, assigns (i“ALPS Associates”) the Custodian shall not be liable so long as and to the Fund for any action or inaction of any ALPS Associate except to the extent that it is of direct Losses1 finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence, willful misconduct or fraud of ALPS in the exercise performance of reasonable careALPS’ duties, obligations, representations, warranties or indemnities under this Agreement or an Intermediary Agreement. Under no circumstances shall ALPS Associates be liable for any defect Losses that are indirect, special, incidental, consequential, punitive, exemplary or enhanced or that represent lost profits, opportunity costs or diminution of value. 1 As used 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 term “Losses” means any and all compensatory, direct, indirect, special, incidental, consequential, punitive, exemplary, enhanced or other damages, settlement payments, attorneys’ fees, costs, damages, charges, expenses, interest, applicable taxes or other 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) hereofkind. (c) The Custodian Fund shall be entitled indemnify, defend and hold harmless ALPS Associates from and against Losses (including legal fees and costs to receive at its own expense and act enforce this provision) that ALPS Associates suffer, incur, or pay as a result of any third-party claim or claim among the parties arising out of the subject matter of or otherwise in any way related to this Agreement or an Intermediary Agreement (“Claims”), including but not limited to: (i) all actions taken by ALPS or ALPS Associates that are necessary to provide the services under this Agreement and/or an Intermediary Agreement, or in reliance upon advice of counsel on all mattersany instructions, and shall not be liable for any action taken information, or omitted in good faith pursuant to requests, whether oral, written or electronic, received from the advice of counsel for the applicable Fund or its officers; or (at ii) any Claims that the expense registration statement, prospectus, statement of additional information, shareholder report, sales literature and advertisements approved for use by the Fund and/or the Fund’s investment adviser or other information filed or made public by the Fund (as from time to time amended) include an untrue statement of a material fact or omission of a material fact required to be stated therein or necessary in order to make the statements therein (and in the case of the Custodianprospectus and statement of additional information, in light of the circumstances under which they were made) such not misleading under the 1933 Act, the 1940 Act, or any other counselstatute, regulation, self-regulatory organization rule or applicable common law. (d) The applicable Fund shall indemnify and hold harmless the Custodian and its affiliates from all taxes, charges, assessments, claims and liabilities Any expenses (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’ legal fees and disbursements, arising directly from costs) incurred by ALPS Associates in defending or responding to any action or omission to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability Claims (or any expenses incident to such liabilityin enforcing this provision) shall be paid by the Fund on a quarterly basis prior to the extent arising out final disposition of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested matter upon receipt by the Funds. (f) In order Fund of an undertaking by ALPS to repay such amount if it shall be determined that an ALPS Associate is not entitled to be indemnified. Notwithstanding the indemnification provisions foregoing, nothing contained in this Section 5 7 or elsewhere in this Agreement shall apply, upon constitute a waiver by the assertion Fund of a claim for which either party may any of its legal rights available under U.S. federal securities laws or any other laws whose applicability is not permitted to be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consentcontractually waived.

Appears in 2 contracts

Samples: Distribution Agreement (Sphinx Opportunity Fund II), Distribution Agreement (Opportunistic Credit Interval Fund)

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 '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 '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 '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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s 's or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s 's failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys' fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s 's or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s 's prior written consent.

Appears in 2 contracts

Samples: Custodian Services Agreement (Smith Barney Sector Series Inc.), Custodian Services Agreement (Salomon Brothers Fund Inc /De/)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all the responsibilities delegated to it under this Agreement (including without limitation in regard to its capacity as Foreign Custody Manager), the Custodian agrees to exercise the reasonable care, prudence diligence and diligence expertise of a professional custodian having responsibility for the safekeeping of assets of investment companies registered under the 1940 Act, 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 from 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 Fund 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 aboveabove and the standard of care set forth above in this Section 8. 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) hereofInstruction. (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 counselcounsel as the Fund and the Custodian may agree upon. (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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds Fund from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise arising directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds Fund with summaries certificates of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries certificates annually or as requested by the FundsFund. (f) In order that the indemnification provisions contained in this Section 5 8 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 1 contract

Samples: Custodian Services Agreement (Consulting Group Capital Markets Funds)

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 '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 '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 '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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s 's or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement.. 19 (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s 's failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys' fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s 's or any of its affiliates' own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s 's prior written consent.

Appears in 1 contract

Samples: Custodian Services Agreement (Smith Barney Investment Funds Inc)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all responsibilities delegated Allfirst shall be under no duty to it under take any action except as specifically set forth herein or as may be specifically agreed to by Allfirst in writing. Allfirst shall use its best judgment and efforts in rendering the services described in 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 Agreement. Allfirst shall not be liable to the Trust or any of the Trust's shareholders for any damages arising out action or inaction of Allfirst relating to any event whatsoever in the Custodian’s absence of bad faith, willful misfeasance, or gross negligence in the performance of Allfirst's duties or failure to perform its duties obligations under this Agreement except to the extent that such damages are reasonably foreseeable or by reason of Allfirst's reckless disregard of its duties and arise directly out of the Custodian’s willful misfeasance, bad faith, negligence or otherwise from a breach of obligations under this Agreement. (b) Without limiting The Trust agrees to indemnify and hold harmless Allfirst, its employees, agents, directors, officers, and managers and any person who controls Allfirst within the generality meaning of section 15 of the foregoing Securities Act or section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act") ("Allfirst Indemnitees"), against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees, and other provision expenses of this Agreementevery nature and character arising out of or in any way related to Allfirst's actions taken or failures to act with respect to a Fund taken (or not taken, as the case may be) in the absence of bad faith, willful malfeasance, and negligence or based, if applicable, on good faith reliance upon an item described in Section 3(c) (i) the Custodian an "Allfirst Claim"). The Trust shall not be liable so long as required to indemnify any Allfirst Indemnitee if, prior to confessing any Allfirst Claim against the Allfirst Indemnitee, Allfirst or the Allfirst Indemnitee does not give the Trust written notice of and reasonable opportunity to defend against the extent that it is Allfirst Claim in the exercise of reasonable care, for any defect in the title, validity or genuineness of any property its own name or in the evidence name of title thereto received by it or delivered by it pursuant to this Agreement, the Allfirst Indemnitee. (iic) the Custodian An Allfirst Indemnitee shall not be liable for losses suffered any action taken or failure to act in good faith reliance upon: (i) the advice of counsel, who may be counsel to the Trust or Allfirst; (ii) any oral or electronic instruction which it receives and which it reasonably believes in good faith was transmitted by a person or persons authorized by the Trust or the Board to give such instruction. Provided that Allfirst has such reasonable belief, Allfirst shall have no duty or obligation to make any inquiry or effort of certification of such instruction; (iii) any written instruction of the Funds due Trust or persons authorized by the Trust 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 restrictionsgive such instruction, or failure any certified copy of any resolution of the mailsBoard, transportationand Allfirst may rely upon the genuineness of any such document or copy thereof reasonably believed in good faith by Allfirst to have been validly executed; or (iv) as to genuineness, communication any signature, instruction, request, letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or power supply), provided that other document reasonably believed in good faith by Allfirst to be genuine and to have been signed or presented by the Custodian has acted in accordance with the provisions of Section 2.11 above. Further, the Custodian Trust or other proper party or parties; and no Allfirst Indemnitee shall not be liable for under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any Oral Instruction statement, oral, electronic, or Written Instruction delivered written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any other document or instrument which Allfirst reasonably believes in accordance with Section 2.3(b) hereofgood faith to be genuine. (cd) The Custodian shall be entitled to receive at its own expense and act upon advice of counsel on all matters, and Allfirst shall not be liable for any action taken or omitted in good faith pursuant the errors of other service providers to the advice Trust or their systems, including errors in information provided by an investment adviser (including prices and pricing formulas and the untimely transmission 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 theretotrade information), and expensescustodian, 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 the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) transfer agent to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this AgreementTrust. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested by the Funds. (f) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 1 contract

Samples: Administration Agreement (Ark Funds/Ma)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all responsibilities delegated ALPS shall be obligated to it under this Agreement (including without limitation act in regard to its capacity as Foreign Custody Manager), the Custodian agrees good faith and to exercise commercially reasonable care, prudence care and diligence and shall not be liable for any damages arising out of in 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 Notwithstanding anything in this Agreement to the generality contrary ALPS and each of the foregoing its affiliates, members, shareholders, directors, officers, partners, employees, agents, successors or of any other provision of this Agreement, assigns (i“ALPS Associates”) the Custodian shall not be liable so long as and to the Trust for any action or inaction of any ALPS Associate except to the extent that it is of direct Losses1 finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence, willful misconduct or fraud of ALPS in the exercise performance of reasonable careALPS’ duties, obligations, representations, warranties or indemnities under this Agreement or an Intermediary Agreement. Under no circumstances shall ALPS Associates be liable for any defect Losses that are indirect, special, incidental, consequential, punitive, exemplary or enhanced or that represent lost profits, opportunity costs or diminution of value. 1 As used 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 term “Losses” means any and all compensatory, direct, indirect, special, incidental, consequential, punitive, exemplary, enhanced or other damages, settlement payments, attorneys’ fees, costs, damages, charges, expenses, interest, applicable taxes or other 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) hereofkind. (c) The Custodian Trust shall indemnify, defend and hold harmless ALPS Associates from and against Losses (including legal fees and costs to enforce this provision) that ALPS Associates suffer, incur, or pay as a result of any third-party claim or claim among the parties arising out of the subject matter of or otherwise in any way related to this Agreement or an Intermediary Agreement (“Claims”), including but not limited to: (i) all actions taken by ALPS or ALPS Associates that are necessary to provide the services under this Agreement and/or an Intermediary Agreement, or in reliance upon any instructions, information, or requests, whether oral, written or electronic, received from the Trust or its officers; or (ii) any Claims that the registration statement, prospectus, statement of additional information, shareholder report, sales literature and advertisements approved for use by the Trust and/or the Trust’s investment adviser or other information filed or made public by the Trust (as from time to time amended) include an untrue statement of a material fact or omission of a material fact required to be stated therein or necessary in order to make the statements therein (and in the case of the prospectus and statement of additional information, in light of the circumstances under which they were made) not misleading under the 1933 Act, the 1940 Act, or any other statute, regulation, self-regulatory organization rule or applicable common law. (iii) Notwithstanding the foregoing, ALPS Associates will not 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 indemnification to the advice extent such Claim results from the gross negligence, willful misconduct, or fraud of counsel for the applicable Fund or (at the expense of the Custodian) such other counselALPS. (d) The applicable Fund shall indemnify and hold harmless the Custodian and its affiliates from all taxes, charges, assessments, claims and liabilities Any expenses (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’ legal fees and disbursements, arising directly from costs) incurred by ALPS Associates in defending or responding to any action or omission to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability Claims (or any expenses incident to such liabilityin enforcing this provision) shall be paid by the Trust on a quarterly basis prior to the extent arising out final disposition of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. (e) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursements, to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. The Custodian agrees to provide the Funds with summaries of its insurance for errors and omissions insurance and fidelity bonds, and agrees to provide updated summaries annually or as requested matter upon receipt by the Funds. (f) In order Trust of an undertaking by ALPS to repay such amount if it shall be determined that an ALPS Associate is not entitled to be indemnified. Notwithstanding the indemnification provisions foregoing, nothing contained in this Section 5 7 or elsewhere in this Agreement shall apply, upon constitute a waiver by the assertion Trust of a claim for which either party may any of its legal rights available under U.S. federal securities laws or any other laws whose applicability is not permitted to be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consentcontractually waived.

Appears in 1 contract

Samples: Distribution Agreement (Axonic Funds)

Standard of Care; Limitation of Liability; Indemnification. (a) In performing all its 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 such as a person having responsibility for the safekeeping of assets of management investment companies registered under the 1940 Act would exercise 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 any losses suffered by any of the Funds due to items within Country Risk or factors beyond the Custodian’s reasonable control (including acts of civil or military authority, national emergencies, labor difficultiesgeneral work stoppages, 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; and provided further that, for the avoidance of doubt, a Fund’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Custodian’s aforementioned failure to perform. 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 without liability for any loss, damage or expense caused by or resulting from the insolvency of any Domestic Sub-Custodian or Foreign Sub-Custodian that is not a wholly-owned subsidiary of the Custodian; provided, however, that the foregoing exculpation of the Custodian with respect to the insolvency of a particular Foreign Sub-Custodian shall not be applicable if the Custodian fails to comply with its obligations under this Agreement or as a Foreign Custody Manager pursuant to Rule 17f-5 with respect to such Foreign Sub-Custodian. For the avoidance of doubt, if the Custodian has met its standard of care hereunder and has fulfilled its obligations as a Foreign Custody Manager pursuant to Rule 17f-5 with respect to a Foreign Sub-Custodian, then the Custodian shall be without liability for any loss, damage or expense caused by or resulting from the insolvency of such Foreign Sub-Custodian. (d) The Custodian shall be without liability for any loss, damage or expense cause by or resulting from the insolvency of any U.S. Clearing System or Foreign Securities Depository; provided, however, that the foregoing exculpation of the Custodian with respect to the insolvency of any Foreign Securities Depository shall not be applicable if the Custodian fails to comply with its obligations under this Agreement or under Rule 17f-7 with respect to such Foreign Securities Depository. For the avoidance of doubt, if the Custodian has met its standard of care hereunder and has fulfilled its obligations under Rule 17f-7 with respect to a Foreign Securities Depository, then the Custodian shall be without liability for any loss, damage or expense caused by or resulting from the insolvency of such Foreign Securities Depository. (e) 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 reasonably taken or omitted in good faith and without negligence pursuant to the advice of counsel for the applicable Fund or (at the expense of the Custodian) such other counsel. (df) 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 disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by the Custodian against the Fund arising from the obligations of the Fund hereunder), arising directly from any action or omission to act which the Custodian or its affiliate takes in accordance with the terms of this Agreement; provided that the Custodian and its affiliates shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement. Notwithstanding the foregoing, in no event shall a Fund incur liability to the Custodian or its affiliates if the Fund is prevented, forbidden or delayed from performing, or omits to perform, any act or thing which this Agreement provides shall be performed or omitted to be performed, by reason of factors beyond the Fund’s reasonable control (including acts of civil or military authority, national emergencies, general work stoppages, 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, however, that for the avoidance of doubt, the Custodian’s failure to perform its obligations under this Agreement shall be excused to the extent that such failure to perform is caused by or results from the Fund’s aforementioned failure to perform. (eg) The Custodian shall indemnify and hold harmless the Funds from all taxes, charges, assessments, claims and liabilities arising directly from the Custodian’s failure to meet its obligations pursuant to this Agreement (including, without limitation, liabilities arising under the Federal Securities Laws, and any state and foreign securities and blue sky laws, and amendments thereto) and expenses, including without limitation reasonable attorneys’ fees and disbursementsreasonable disbursements (including, without limitation, those incurred in asserting any claim by any Fund against the Custodian arising from the obligations of the Custodian hereunder), to the extent that such damages are reasonably foreseeable and arise directly out of the Custodian’s or any of its affiliates’ own willful misfeasance, bad faith, negligence or breach of this Agreement, provided that the Funds shall not be indemnified against any liability (or any expenses incident to such liability) to the extent arising out of any Fund’s own willful misfeasance, bad faith, negligence or breach of this Agreement. (h) Upon the occurrence of any event relating to the services provided under this Agreement that causes or may cause any loss, damage or expense to one or more Funds or Portfolios, the Custodian (i) shall reasonably promptly notify each such Fund or Portfolio of the occurrence of such event and (ii) shall use (and shall use its reasonable best efforts to cause any applicable agent or domestic or foreign sub-custodian to use) commercially reasonable efforts and take reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to each such Fund or Portfolio. (i) The Custodian will maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as may be appropriate, in each case in a commercially reasonable amount sufficient to cover its potential liabilities under this Agreement. The Custodian agrees to provide the Funds with summaries of its applicable insurance for errors and omissions insurance and fidelity bondscoverage, and agrees to provide updated summaries annually monthly or as requested by the Funds. (fj) In order that the indemnification provisions contained in this Section 5 shall apply, upon the assertion of a claim for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party who may be required to indemnify shall have the option to participate with the party seeking indemnification in the defense of such claim. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party’s prior written consent.

Appears in 1 contract

Samples: Custodian Services Agreement (ClearBridge Energy MLP Total Return Fund Inc.)

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