Common use of Standard of Liability and Indemnity Clause in Contracts

Standard of Liability and Indemnity. (A) (a) STANDARD OF LIABILITY. MSIL AND ITS AFFILIATES (AS DEFINED BELOW) SHALL NOT BE LIABLE TO CUSTOMER, THE GENERAL PARTNER OF THE CUSTOMER, OR THE LIMITED PARTNERS OF THE CUSTOMER ("LIMITED PARTNERS"), OR ANY OF ITS OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, FOR ANY ACT, OMISSION, CONDUCT, OR ACTIVITY UNDERTAKEN BY OR ON BEHALF OF THE CUSTOMER PURSUANT TO THIS AGREEMENT WHICH MSIL DETERMINES, IN GOOD FAITH, TO BE IN THE BEST INTEREST OF THE CUSTOMER, UNLESS SUCH ACT, OMISSION, CONDUCT, OR ACTIVITY BY MSIL OR ITS AFFILIATES CONSTITUTED MISCONDUCT OR NEGLIGENCE. WITHOUT LIMITING THE FOREGOING, MSIL SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO CUSTOMER HEREUNDER (I) IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE BY ANY EXCHANGE, CLEARING HOUSE OR OTHER THIRD PARTY (INCLUDING FLOOR BROKERS NOT SELECTED BY MSIL) AND/OR BROKER TO MSIL OF ITS OBLIGATIONS IN RESPECT OF ANY CONTRACT OR TRANSACTION OR OTHER PROPERTY OF CUSTOMER; (II) AS A RESULT OF ANY PREDICTION, RECOMMENDATION OR ADVICE MADE OR GIVEN BY A REPRESENTATIVE OF MSIL WHETHER OR NOT MADE OR GIVEN AT THE REQUEST OF CUSTOMER; (III) AS A RESULT OF MSIL'S RELIANCE ON ANY INSTRUCTIONS, NOTICES AND COMMUNICATIONS THAT IT BELIEVES TO BE THAT OF AN INDIVIDUAL AUTHORIZED TO ACT ON BEHALF OF CUSTOMER; (IV) AS A RESULT OF ANY DELAY IN THE PERFORMANCE OR NON-PERFORMANCE OF ANY OF MSIL'S OBLIGATIONS HEREUNDER DIRECTLY OR INDIRECTLY CAUSED BY THE OCCURRENCE OF ANY CONTINGENCY BEYOND THE CONTROL OF MSIL INCLUDING, BUT NOT LIMITED TO, THE UNSCHEDULED CLOSURE OF AN EXCHANGE OR CLEARING HOUSE OR DELAYS IN THE TRANSMISSION OF ORDERS DUE TO BREAKDOWNS OR FAILURES OF TRANSMISSION OR COMMUNICATION FACILITIES, EXECUTION, AND/OR TRADING FACILITIES OR OTHER SYSTEMS, IT BEING UNDERSTOOD THAT MSIL SHALL BE EXCUSED FROM PERFORMANCE OF ITS OBLIGATIONS HEREUNDER FOR SUCH PERIOD OF TIME AS IS REASONABLY NECESSARY AFTER SUCH OCCURRENCE TO REMEDY THE EFFECTS THEREFROM; (V) AS A RESULT OF ANY ACTION TAKEN BY MSIL TO COMPLY WITH MARKET REQUIREMENTS OR APPLICABLE LAW; OR (VI) FOR ANY ACTS OR OMISSIONS OF THOSE NEITHER EMPLOYED NOR SUPERVISED BY MSIL (EXCLUDING FLOOR BROKERS SELECTED BY MSIL). IN NO EVENT WILL MSIL BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES HEREUNDER.

Standard of Liability and Indemnity. (A) (aA) STANDARD OF LIABILITY. MSIL AND ITS AFFILIATES (AS DEFINED BELOW) SHALL NOT BE LIABLE TO CUSTOMER, THE GENERAL PARTNER OF THE CUSTOMER, OR THE LIMITED PARTNERS OF THE CUSTOMER ("LIMITED PARTNERS"), OR ANY OF ITS OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, FOR ANY ACT, OMISSION, CONDUCT, OR ACTIVITY UNDERTAKEN BY OR ON BEHALF OF THE CUSTOMER PURSUANT TO THIS AGREEMENT WHICH MSIL DETERMINES, IN GOOD FAITH, TO BE IN THE BEST INTEREST OF THE CUSTOMER, UNLESS SUCH ACT, OMISSION, CONDUCT, OR ACTIVITY BY MSIL OR ITS AFFILIATES CONSTITUTED MISCONDUCT OR NEGLIGENCE. WITHOUT LIMITING THE FOREGOING, MSIL SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO CUSTOMER HEREUNDER (I) IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE BY ANY EXCHANGE, CLEARING HOUSE OR OTHER THIRD PARTY (INCLUDING FLOOR BROKERS NOT SELECTED BY MSIL) AND/OR BROKER TO MSIL OF ITS OBLIGATIONS IN RESPECT OF ANY CONTRACT OR TRANSACTION OR OTHER PROPERTY OF CUSTOMER; (II) AS A RESULT OF ANY PREDICTION, RECOMMENDATION OR ADVICE MADE OR GIVEN BY A REPRESENTATIVE OF MSIL WHETHER OR NOT MADE OR GIVEN AT THE REQUEST OF CUSTOMER; (III) AS A RESULT OF MSIL'S RELIANCE ON ANY INSTRUCTIONS, NOTICES AND COMMUNICATIONS THAT IT BELIEVES TO BE THAT OF AN INDIVIDUAL AUTHORIZED TO ACT ON BEHALF OF CUSTOMER; (IV) AS A RESULT OF ANY DELAY IN THE PERFORMANCE OR NON-PERFORMANCE OF ANY OF MSIL'S OBLIGATIONS HEREUNDER DIRECTLY OR INDIRECTLY CAUSED BY THE OCCURRENCE OF ANY CONTINGENCY BEYOND THE CONTROL OF MSIL INCLUDING, BUT NOT LIMITED TO, THE UNSCHEDULED CLOSURE OF AN EXCHANGE OR CLEARING HOUSE OR DELAYS IN THE TRANSMISSION OF ORDERS DUE TO BREAKDOWNS OR FAILURES OF TRANSMISSION OR COMMUNICATION FACILITIES, EXECUTION, AND/OR TRADING FACILITIES OR OTHER SYSTEMS, IT BEING UNDERSTOOD THAT MSIL SHALL BE EXCUSED FROM PERFORMANCE OF ITS OBLIGATIONS HEREUNDER FOR SUCH PERIOD OF TIME AS IS REASONABLY NECESSARY AFTER SUCH OCCURRENCE TO REMEDY THE EFFECTS THEREFROM; (V) AS A RESULT OF ANY ACTION TAKEN BY MSIL TO COMPLY WITH MARKET REQUIREMENTS OR APPLICABLE LAW; OR (VI) FOR ANY ACTS OR OMISSIONS OF THOSE NEITHER EMPLOYED NOR SUPERVISED BY MSIL (EXCLUDING FLOOR BROKERS SELECTED BY MSIL). IN NO EVENT WILL MSIL BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES HEREUNDER.