Standard of Care/Limitations of Liability. (a) Subject to the terms of this Section 10, PFPC Trust shall be liable to the Funds (or any person or entity claiming through the Funds) for damages only to the extent caused by PFPC Trust’s own intentional misconduct, bad faith, negligence or reckless disregard of its duties under this Agreement (“Standard of Care”).
(b) Notwithstanding anything in this Agreement to the contrary (other than as specifically provided in Section 12(h)(ii)(B)(4) and Section 12(h)(iii)(A) of this Agreement), the Funds shall be responsible for all filings, tax returns and reports on any transactions undertaken pursuant to this Agreement, or in respect of the Property or any collections undertaken pursuant to this Agreement, which may be requested by any relevant authority. In addition, the Funds shall be responsible for the payment of all taxes and similar items (including without limitation penalties and interest related thereto).
(c) PFPC Trust shall not be liable for damages (including without limitation damages caused by delays, failure, errors, interruption or loss of data) occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation: acts of God; action or inaction of civil or military authority; national emergencies; public enemy; war; terrorism; riot; fire; flood; catastrophe; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; non-performance by a third party; failure of the mails; or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the above. Should an event beyond PFPC Trust’s reasonable control occur, PFPC Trust will follow applicable procedures in its disaster recovery and business continuity plan and use commercially reasonable efforts to mitigate and minimize any service interruptions to the Funds.
(d) PFPC Trust shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice, instrument or other information which PFPC Trust reasonably believes to be genuine. PFPC Trust shall not be liable for any damages that are caused by actions or omissions taken by PFPC Trust in accordance with Written Instructions or the reasonable advice of counsel. PFPC Trus...
Standard of Care/Limitations of Liability. A. Distributor shall be under no duty to take any action hereunder on behalf of the Funds except as specifically set forth herein or as may be specifically agreed to by Distributor and the Funds in a written amendment hereto.
B. Subject to the terms of this Section XI, Distributor shall be liable to the Funds (or any person or entity claiming through the Funds) for damages only to the extent caused by (i) Distributor’s own willful misfeasance, bad faith or gross negligence in the performance of its obligations or duties under this Agreement or in its compliance or failure to comply with the laws, rules and regulations applicable to it in connection with its activities hereunder, or (ii) Distributor’s reckless disregard of its obligations or duties under this Agreement (collectively, the “Standard of Care”).
C. Distributor’s liability to the Funds or any person or entity claiming through the Funds for any losses, claims, suits, controversies, breaches or damages of any nature whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory (each a “Loss”) shall not exceed the fees received by Distributor for services provided hereunder during the eighteen months immediately prior to the date of such Loss.
D. Distributor shall not be liable for damages (including without limitation damages caused by delays, failure, errors, interruptions or losses of data) occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; national emergencies; public enemy; war; terrorism; riot; fire; flood; catastrophe; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; non-performance by a third party; failure of the mails; or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the above.
E. Distributor shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice, instrument or other information which Distributor reasonably believes to be genuine and authorized by the Advisor. Distributor shall not be liable for any damages...
Standard of Care/Limitations of Liability. (a) PNC represents and warrants that to its knowledge it has the right to grant access to the Site and to provide the services contemplated herein.
(b) Notwithstanding anything to the contrary contained in this Exhibit or any other part of the Agreement, PNC shall be liable for direct damages incurred by VP Distributors or the Funds which arise out of PNC’s failure to perform its duties and obligations described in this Exhibit only to the extent such damages constitute willful misfeasance, bad faith, negligence or reckless disregard.
(c) VP Distributors and the Funds acknowledge that the Internet is an “open,” publicly accessible network and not under the control of any party. PNC’s provision of the Site Services is dependent upon the proper functioning of the Internet and services provided by telecommunications carriers, firewall providers, encryption system developers and others.
(d) Without limiting the generality of the foregoing or any other provisions of this Exhibit or the Agreement, PNC shall not be liable for delays or failures to perform any of the DataPath Services or errors or loss of data occurring by reason of circumstances beyond such party’s control, including acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrections, war, riots or failure of the mails, transportation, communication or power supply, functions or malfunctions of the Internet or telecommunications services, firewalls, encryption systems or security devices caused by any of the above, or laws or regulations imposed after the date of this Exhibit.
(e) PNC will defend or, at its option, settle any claim or action brought against VP Distributors or the Funds to the extent that it is based upon the assertion that access to or the use of the Site or information on the Site through any such proprietary system by VP Distributors or the Funds, as applicable, constitutes an infringement of any United States patent or copyright or misappropriation of a trade secret, provided that the applicable indemnified party notifies PNC promptly in writing of any such claim or proceeding and cooperates with PNC in the defense of such claim or proceeding. Should the Site or information on the Site become, or in PNC’s opinion be likely to become, the subject of a claim or infringement or the like under the patent or copyright or trade secret laws of the United States, PNC shall have the right, at its sole option, to (i) procur...
Standard of Care/Limitations of Liability. (a) Adviser will give the Trust the benefit of the Adviser’s best judgment and efforts in rendering its services to the Trust. Adviser will not be liable for any error of judgment or mistake of law or for any loss suffered by any Fund, the Trust or any of its shareholders, in connection with the matters to which this Agreement relates, except to the extent that such a loss results from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Any person, even though also an officer, director, employee, or agent of Adviser, who may be or become an officer, Trustee, employee or agent of the Trust shall be deemed, when rendering services to any Fund or the Trust or acting with respect to any business of such Fund or the Trust, to be rendering such service to or acting solely for the Fund or the Trust and not as an officer, director, employee, or agent or one under the control or direction of Adviser even though paid by it.
(b) Adviser is expressly put on notice of, and hereby acknowledges and agrees to, the limitation of shareholder liability as set forth in the Trust Instrument of the Trust and agrees that the obligations assumed by the Trust under this contract shall be limited in all cases to the Trust and its assets. Adviser shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Trust, nor shall Adviser seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Trust. Adviser understands that the rights and obligations of each series of shares of the Trust under the Trust Instrument are separate and distinct from those of any and all other series.
(c) Neither party shall be responsible or liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control including, without limitation, acts of civil or military authority, national emergencies, labor difficulties (other than those related to the Adviser’s employees), fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply.
(d) Neither party to this Agreement shall be liable to the other party for consequential damages under any provision of this Agreement.
Standard of Care/Limitations of Liability. (a) Notwithstanding anything to the contrary contained in this Exhibit or any other part of the Agreement, Sub-Administrator shall be liable for direct damages incurred by the Trust or the Administrator which arise out of Sub-Administrator's failure to perform its duties and obligations described in this Exhibit only to the extent such damages constitute willful misfeasance, bad faith, gross negligence or reckless disregard, or any material, uncured breach of this Agreement by Sub-Administrator.
(b) The Administrator acknowledges that the Internet is an "open," publicly accessible network and not under the control of any party. Sub-Administrator's provision of Services is dependent upon the proper functioning of the Internet and services provided by telecommunications carriers, firewall providers, encryption system developers and others. The Administrator agrees that Sub-Administrator shall not be liable in any respect for the actions or omissions of any third party wrongdoers (i.e., hackers not employed by such party or its affiliates) or of any third parties involved in the Services and shall not be liable in any respect for the selection of any such third party, unless the access by such third party wrongdoers or third parties involved in the Services constitutes a breach of Sub-Administrator's standard of care above, or that selection of the third party constitutes a breach of Sub-Administrator's standard of care above.
(c) Without limiting the generality of the foregoing or any other provisions of this Exhibit or the Agreement, Sub-Administrator shall not be liable for delays or failures to perform any of the Services or errors or loss of data occurring by reason of circumstances beyond such party's control, including acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrections, war, riots or failure of the mails, transportation, communication or power supply, functions or malfunctions of the Internet or telecommunications services, firewalls, encryption systems or security devices caused by any of the above, or laws or regulations imposed after the date of this Exhibit; provided, that Sub-Administrator maintains and implements the Disaster Recovery Plan.
Standard of Care/Limitations of Liability. (a) Subject to the terms of this Section 10, the Administrator shall be liable to the Funds (or any person or entity claiming through the Funds) for damages only to the extent caused by the Administrator’s own intentional misconduct, bad faith, negligence or reckless disregard of its duties under this Agreement ("Standard of Care").
(b) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 12-14 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) the Administrator, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon the Administrator’s interpretation of tax positions or its interpretation of relevant circumstances (as determined by the Administrator) in providing such tax services and in determining methods of calculating portfolio performance to be used, and that (ii) the Administrator shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage is substantially due to the Administrator’s breach of its Standard of Care hereunder.
(c) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that the Administrator shall not be liable for any losses or damages of any kind associated with any tax filings with which the Administrator has assisted in any way except to the extent such loss or damage is substantially due to the Administrator’s the Administrator’s breach of its Standard of Care hereunder; provided, however, that the Administrator shall not be found to have been grossly negligent for losses or damages associated with areas of responsibility that the judiciary, regulators (or other governmental officials) or members of the hedge fund industry determine would otherwise apply to the Administrator (or similar service providers) and which, as of the date hereof, have yet to be identified by such parties as areas for which the Administrator (or any similar service provider) is (or would be) responsible.
(d) Each Fund acknowledges that it may be considered a U.S. withholding agent and/or may required to file information or other tax returns under the U.S. Internal Revenue Code and related regulations ("IRC and Regulations"). Each Fund agrees that it or its designated agents are, and will continue to be, in compliance with all withholding and reporting requir...
Standard of Care/Limitations of Liability. (a) The Sub-Administrator shall exercise due care and diligence to ensure the accuracy of all services performed under this Agreement. Subject to the terms of this Section 12, the Sub-Administrator shall be liable to the Administrator and the Funds (or any person or entity claiming through the Administrator or the Funds) for damages only to the extent caused by the Sub-Administrator’s own intentional misconduct, bad faith or negligence with respect to its duties under this Agreement (“Standard of Care”).
(b) If and to the extent that a party’s performance of any of its obligations under this Agreement is prevented, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such party (each, a “Force Majeure Event”), and such nonperformance, hindrance or delay could not have been prevented by reasonable precaution, then the nonperformance, hindered or delayed party will be excused for such nonperformance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such party continues to use reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The party whose performance is prevented, hindered or delayed by a Force Majeure Event will immediately notify the other party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. The occurrence of a Force Majeure Event does not excuse, limit or otherwise affect Sub-Administrator’s obligation to institute recovery and backup plans.
(c) The Sub-Administrator shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice and instrument or other information which the Sub-Administrator reasonably believes to be genuine. The Sub-Administrator shall not be liable for any damages that are caused by actions or omissions taken by the Sub-Administrator in accordance with Oral Instructions or Written Instructions provided pursuant to Section 3 of this Agreement or the reasonable advice of counsel. The Sub-Administrator shall not be liable f...
Standard of Care/Limitations of Liability. (a) Subject to the terms of this Section 5, BNY shall be liable to each Company or a Fund for damages only to the extent caused by (i) BNY’s own willful misfeasance, bad faith or negligence in the performance of its obligations or duties under this Agreement, or (ii) BNY’s reckless disregard of its obligations or duties under this Agreement (collectively, the “Standard of Care”).
(b) Neither party may assert any cause of action against the other party under this Agreement that accrued more than three (3) years prior to the filing of the suit or commencement of arbitration proceedings alleging such cause of action.
(c) Each party shall have the duty to mitigate damages for which the other party may become responsible.
(d) BNY’S LIABILITY TO A COMPANY OR THE FUNDS, AND ANY PERSON OR ENTITY CLAIMING THROUGH A COMPANY FOR ANY LOSS, CLAIM, SUIT, CONTROVERSY, BREACH OR DAMAGE OF ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY (“LOSS”) SHALL NOT EXCEED THE FEES RECEIVED BY BNY FOR SERVICES PROVIDED HEREUNDER DURING THE SIX MONTHS IMMEDIATELY PRIOR TO THE DATE OF SUCH LOSS; PROVIDED, HOWEVER, THAT IF BNY HAS PROVIDED SERVICES FOR LESS THAN SIX MONTHS IMMEDIATELY PRIOR TO THE DATE OF SUCH LOSS, THEN BNY’S LOSSES SHALL NOT EXCEED THE FEES BNY WOULD REASONABLY BE EXPECTED TO RECEIVE FOR THE SERVICES PROVIDED HEREUNDER DURING THE FIRST SIX MONTHS OF THIS AGREEMENT; PROVIDED FURTHER THAT BNY’S CUMULATIVE MAXIMUM LIABILITY FOR ALL LOSSES SHALL NOT EXCEED $100,000 UNLESS THE LOSS IS ATTRIBUTABLE TO THE INTENTIONAL MISCONDUCT OR THE WILLFUL MISFEASANCE OF BNY.
(e) Notwithstanding anything in this Agreement to the contrary, in no event shall either party be liable to the other under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether either party has been advised of the possibility of such damages.
(f) Without limiting the generality of the foregoing or any other provisions of this Agreement, neither party shall be liable for damages (including, without limitation, damages caused by delays, failure, errors, interruptions or losses of data) occurring directly or indirectly by reason of circumstances beyond its control, incl...
Standard of Care/Limitations of Liability. (a) The Funds and Advisor acknowledges that the Internet is an "open," publicly accessible network and not under the control of any party. PNC's provision of Accounting Services is dependent upon the proper functioning of the Internet and services provided by telecommunications carriers, firewall providers, encryption system developers and others. The Funds and Advisor agrees that PNC shall not be liable in any respect for the actions or omissions of any third party wrongdoers (i.e., hackers not employed by such party or its affiliates) or of any third parties involved in the Accounting Services and shall not be liable in any respect for the selection of any such third party, unless that selection constitutes a breach of PNC's standard of care set forth in Section 14 of the Agreement.
(b) Without limiting the generality of the foregoing or limiting the applicability of any other provision of this Exhibit B or the Agreement, including Sections 11, 14(a) and 14(b), PNC shall not be liable for delays or failures to perform any of the Accounting Services or errors or loss of data occurring by reason of circumstances beyond such party's control, which may include: functions or malfunctions of the internet or telecommunications services, firewalls, encryption systems or security devices. EXHIBIT C ALLEGIANT FUNDS AND ALLEGIANT ADVANTAGE FUND SERVICE STANDARDS (Standards shall be measured on a monthly basis) FUND ACCOUNTING AND ADMINISTRATION SERVICES CATEGORY - FUND ACCOUNTING
1. Number of Accurate NAV's Reported to each Fund's transfer agent (the "Transfer Agent") divided by the Total Number of NAV's Required to Report to the Transfer Agent (excluding Money Market Funds): 98%
Standard of Care/Limitations of Liability. (a) Nothing in this Section 3 shall in any way serve to limit any limitation of liability provision otherwise applicable to PFPC under the Agreement. In the event of a conflict between the specific terms of this Exhibit B as they relate to a particular Fund and the balance of the Agreement as it relates to such Fund, this Exhibit B shall control as to the Services with respect to such Fund.
(b) Each Fund acknowledges that the Internet is an “open,” publicly accessible network and not under the control of any party. PFPC’s provision of Services is dependent upon the proper functioning of the Internet and services provided by telecommunications carriers, firewall providers, encryption system developers and others. Each Fund agrees that PFPC shall not be liable in any respect for the actions or omissions of any third party wrongdoers (i.e., hackers not employed by PFPC or its affiliates) or of any third parties involved in the Services and shall not be liable in any respect for the selection of any such third party, unless that selection constitutes willful misfeasance, bad faith or negligence on the part of PFPC.
(c) Without limiting the generality of the foregoing or any other provisions of this Exhibit B or the Agreement, PFPC shall not be liable for delays or failures to perform any of the Services or errors or loss of data occurring directly or indirectly by reason of circumstances beyond PFPC’s reasonable control, including without limitation the items referenced in Section 13(b)(i) of the Agreement and including without limitation, functions or malfunctions of the Internet or telecommunications services, firewalls, encryption systems or security devices occurring directly or indirectly by reason of circumstances beyond PFPC’s reasonable control or by reason of laws or regulations imposed after July 1, 2005.
