Common use of Standard of Liability and Indemnity Clause in Contracts

Standard of Liability and Indemnity. (a) Neither the Portfolio Manager nor any of its affiliates nor any of its or their members, partners, officers, directors, managers, employees or shareholders or any of their respective successors and assigns (collectively, the “Portfolio Manager Parties”) shall be liable, responsible or accountable in damages or otherwise to the Company or its successors, assignees or transferees, or to third parties for any act or omission performed or omitted by them on behalf of the Company and in a manner reasonably believed by them to be within the scope of the authority granted to them by this Agreement or for any costs, damages or liabilities arising therefrom or by law, unless that act or omission constitutes a breach of fiduciary obligations, fraud or willful misconduct by the Portfolio Manager (the “Portfolio Manager Bad Acts”). Neither the Portfolio Manager nor any of the Portfolio Manager Parties shall have any liability to the Company for any losses suffered due to the action or inaction of any agent or representative retained by the Portfolio Manager, provided that such person was selected by the Portfolio Manager with reasonable care irrespective of the reason for the loss. The Portfolio Manager and the Portfolio Manager Parties may consult with counsel and accountants in respect of the Company’s affairs and be fully protected and justified in any action or inaction which is taken in good faith and in accordance with the information, reports, statements, advice or opinion provided by such counsel and/or accountants, provided that they were selected with reasonable care and the matter consulted is reasonably believed by such persons to be within such counsel’s or accountants’ professional or expert competence. All investment and trading activity with respect to the Assets shall be for the account and risk of the Company and, except as otherwise provided herein, neither the Portfolio Manager nor any Portfolio Manager Party shall incur any liability for investment or trading profits or losses resulting therefrom, or any expenses related thereto. (b) Neither the Portfolio Manager nor any of the Portfolio Manager Parties shall be liable to the Company or any of its shareholders, their managers, members, officers, directors, employees, shareholders or other applicable representatives or to third parties for any taxes assessed upon or payable by any of them wheresoever the same may be assessed or imposed, whether directly or indirectly. (c) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 9 shall not be construed so as to relieve (or attempt to relieve) the Portfolio Manager of any liability to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law, but shall be construed so as to effectuate the provisions of this Section 9 to the fullest extent permitted by law.