Common use of Terms Relating to Liability Clause in Contracts

Terms Relating to Liability. (a) Subject to the terms of this Section 10, the Administrator shall be liable to the Fund (or any person or entity claiming through the Fund) for damages only to the extent caused by the Administrator’s own intentional misconduct, bad faith or negligence with respect to its duties under this Agreement (“Breach Conduct”). (b) The Administrator’s maximum aggregate cumulative liability to the Fund and any person or entity claiming through the Fund, considered as a whole, for all Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed: (i) the fees actually paid to the Administrator by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date; or (ii) if the last Loss Date occurs during the period commencing with the Effective Date and ending on the first anniversary of the Effective Date, the fees actually paid to the Administrator by the Fund for services provided during the twelve (12) months immediately prior to the last Loss Date under this Agreement and the applicable Prior Administration & Accounting Agreement. (c) The Administrator 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. (d) The 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, instrument or other information which the Administrator reasonably believes to be genuine. The Administrator shall not be liable for any damages that are caused by actions or omissions taken by the Administrator in accordance with Written Instructions or, where obtained pursuant to and in accordance with Section 3 above, the advice of counsel for the Fund or the Fund’s investment adviser. The Administrator shall not be liable for any damages arising out of any action or omission to act by any prior service provider of the Fund or for any failure to discover any such error or omission. (e) Notwithstanding any other provision of this Agreement, in no event shall the Administrator, its affiliates or any of its or their directors, officers, employees, agents or subcontractors be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other damages which are not direct damages regardless of whether such damages were or should have been foreseeable and regardless of whether any entity has been advised of the possibility of such damages, all and each of which damages is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in part over this Section 10(e). (f) No party may assert a cause of action against the Administrator or any of its affiliates that allegedly occurred more than 36 months immediately prior to the filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (h) This Section 10 shall survive termination of this Agreement.

Terms Relating to Liability. (a) Subject to the terms of this Section 10, the Administrator shall be liable BNYM's sole and exclusive monetary liability to the Fund (or any person or entity and all persons claiming through or for the Fund) under this Agreement shall be for the direct money damages only to the extent caused by the Administrator’s own (i) that result from BNYM's intentional misconduct, bad faith reckless disregard, fraud or negligence with respect to its duties in the performance of an obligation under this Agreement (“Breach "Liable Conduct”"), and (ii) that are not excluded by another provision of this Agreement. (b) The Administrator’s BNYM's maximum aggregate cumulative monetary liability to the Fund and any person all persons or entity entities claiming through the Fund, considered as a whole, for all Losses loss, cost, expense, damages, liabilities and obligations under or related to this Agreement or the services hereunder, the recovery of which is not otherwise excluded by another provision of this Agreement Agreement, shall not exceed: exceed (i) the fees Fees actually paid to the Administrator BNYM by the Fund for services provided hereunder during the twelve (12) calendar months immediately prior to preceding the last Loss Date; or (ii) if the last Loss Date occurs during prior to the period commencing with completion of twelve (12) full calendar months following the Effective Date and ending on the first anniversary of the Service Effective Date, the fees actually greater of (A) all Fees paid with respect to services rendered during the full calendar months that have elapsed subsequent to the Administrator by Service Effective Date ("Elapsed Months"), or (B) the Fund for services provided average monthly amount of Fees paid during the twelve (Elapsed Months multiplied by 12. The maximum aggregate cumulative liability of BNYM as specified by this Section 11(b) months immediately prior is referred to herein as the last Loss Date under this Agreement and the applicable Prior Administration & Accounting Agreement"General Damage Cap". (c) The Administrator Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall not be liable for damages any Loss (including without limitation damages Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of circumstances any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation acts limitation: extraordinary forces of Godnature and natural disasters, such as floods, hurricanes, severe storms (storms with one or more severely destructive forces comparable to hurricane but not meeting technical hurricane criteria), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action or inaction of civil or military authority; national emergencieswar, terrorism, riots or insurrection; public enemycriminal acts; warjob action by organized labor; terrorism; riot; fire; flood; catastrophe; sabotage; epidemics; labor disputes; civil commotionbuilding or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements denial of natureservice attacks; non-performance by a third party; failure parties (other than subcontractors of the mailsBNYM for causes other than those described herein); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the aboveforegoing (all and any of the foregoing being an "Event Beyond Reasonable Control"). Upon the occurrence of an Event Beyond Reasonable Control, the affected Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted, including invoking disaster recovery or business continuity plans when applicable. (d) The 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, instrument or other information which the Administrator reasonably believes to be genuine. The Administrator BNYM shall not be liable for any damages that are caused by actions or omissions taken by the Administrator in accordance with Written Instructions or, where obtained pursuant to and in accordance with Section 3 above, the advice of counsel for the Fund or the Fund’s investment adviser. The Administrator shall not be liable for any damages Loss arising out of any action action, omission or omission to act by conduct of any prior service provider of the Fund (other than BNYM or its Affiliates) or for any failure to discover any action, omission or conduct of any prior service provider of the Fund that caused or could cause Loss; provided such error or omissionLoss is not caused by the Liable Conduct of BNYM. (e) Notwithstanding any other provision of this Agreement, except to the extent a provision may expressly provide for indemnification of all Loss, in which case indemnification for all Loss shall be permitted, in no event shall the Administratora party to this Agreement, its affiliates Affiliates or any of its or their respective directors, officers, employees, agents or subcontractors be liable under the Agreement under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other damages losses which are not direct damages regardless of whether such losses or damages were or should have been foreseeable and regardless of whether any entity or person has been advised of the possibility of such losses or damages, all and each of which damages such loss is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in part over this Section 10(e). (f) No party may assert a claim or cause of action against the Administrator or any of its affiliates that allegedly occurred more than 36 months immediately prior to the filing of the suit (or, if applicable, commencement commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of arbitration proceedings) alleging its affiliates more than 18 months after such party first becomes aware, or should reasonably have become aware, of the events or occurrences comprising the conduct or alleged conduct upon which the claim, cause of actionaction or dispute resolution proceeding is based. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. BNYM shall be permitted to pursue recovery of amounts paid by BNYM to persons not entitled to such amounts or payments, including through all available legal remedies, and the Fund agrees to cooperate with BNYM (at BNYM's expense and request). (h) With respect to securities data, files, reports, information and research furnished to BNYM by third parties (not delegated duties, subcontracted or otherwise engaged by BNYM to perform the services hereunder on its behalf) and included in the BNYM System ("Securities Data"), the Fund acknowledges that BNYM makes no warranty concerning the Securities Data and BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and BNYM shall not be liable for Loss caused by Errant Securities Data (as defined below); provided, however, with respect to transaction activity communicated to BNYM by the DTCC or NSCC, BNYM will maintain commercially reasonable processes and procedures to detect and attempt to resolve rejected transactions. "Errant Securities Data" means Securities Data not being provided to BNYM with the content and at the time which is standard for the industry or which is required for or used in the performance of any service provided for in the Agreement. (i) If BNYM becomes aware of a matter that involves a signature guarantee, signature validation, or any other guarantee or certification regarding a signature, document or instrument, a fraudulent signature, document or instrument, a document or instrument that is alleged to be fraudulently procured, tendered or negotiated, any other matter involving a payment instrument, a payment or funds transfer system, or a payment clearance system, and any other matter that may give rise to a claim for recovery under applicable law or regulation or the rules of an industry utility (such as the NSCC or NACHA), BNYM will take commercially reasonable measures to investigate the facts of the matter and upon the conclusion of the investigation provide to the Fund with access to all materials and information gathered during the investigation not subject to a confidentiality obligation to third parties and thereafter, as between the Fund and BNYM, any further action on behalf of the Fund or a shareholder in connection with the matter investigated shall be the sole and exclusive responsibility of the Fund. BNYM shall cooperate reasonably to provide information in its possession at the time in any ongoing investigation conducted by the Fund into such matters. (j) BNYM shall be entitled to rely on, and engage in conduct based upon, its reasonable interpretation of "Legal Authority" (which is hereby defined to mean all laws and all regulations, rules, legal process and other acts and communications of an official nature of governmental, quasi-governmental bodies, regulatory and self-regulatory bodies) and the analysis and advice of legal counsel, including such reliance and conduct in circumstances when available Legal Authority is in conflict or does not provide unambiguous precedent or guidance. BNYM may rely and act in accordance with the analysis and advice of legal counsel that is reasoned notwithstanding the existence or availability of a differing legal analysis or advice or of different interpretations. For the avoidance of doubt, such conduct is included within the conduct described in clause (b) of Section 12 and the rights described in Section 12 apply in the event the Fund requests that BNYM engage in conduct other than in accordance with BNYM's reasonable interpretation of Legal Authority or reasoned legal analysis or legal advice and BNYM engages in such conduct. (k) In connection with any dispute or action between the parties to this Agreement , unless recovery of legal fees or expenses is expressly provided for by a particular provision: no party to this Agreement shall be liable to any other party to this Agreement for any costs or expenses of any nature related to legal counsel, legal representation or legal action, including without limitation costs and expenses associated with litigation, threatened litigation and dispute resolution, court costs and costs of arbitration, discovery, experts, settlement and investigation that arise in connection with any claim, indemnification right, action or demand made or sought under this Agreement; each party shall bear its own such costs and expenses. (1) Any Loss incurred by any party to the Agreement or its Affiliates or any other party, including a current or former Fund shareholder, as a result of fraud by a Shareholder or other person, including without limitation Loss incurred in connection with any one or more of the events or circumstances described immediately below ("Fraud Loss"), shall, as between BNYM and the Fund, be the responsibility and liability of the Fund, if in connection with all related purchase, repurchase and/or redemption transactions BNYM complied in all material respects with the Written Procedures applicable to such transactions ("Applicable Procedures"): (i) The acceptance, processing, negotiation or crediting to an account of a payment for the purchase of Shares (whether a check, permissible cash equivalent, ACH transfer, wire transfer or other permissible payment instrument or method) that is (A) subsequently determined or claimed to be fraudulent, unauthorized or otherwise invalid, (B) an electronic funds transfer that is returned, reversed, reclaimed or otherwise withdrawn, or (C) an instrument that is dishonored, rejected or returned after the Fund's hold period on new purchases expires; (ii) Multiple deposit, negotiation or other taking possession of the proceeds of a distribution, such as (A) the remote deposit of a check through a "smart phone" or other mobile check-depositing application combined with the cashing of the same check at a check cashing agency, or (B) a shareholder reporting a distribution check as lost, stolen or missing combined with a request for a replacement payment by electronic funds transfer followed by the cashing at a check cashing agency of the check reported lost, stolen or missing; or (iii) The receipt in good order and the processing of instructions, whether oral, written, electronic, sent via Internet, automated voice or by other permissible means, regarding the repurchase or redemption of shares in an account and the distribution of the proceeds of that repurchase or redemption or any other financial or maintenance transaction, including without limitation changing the bank account of record, that are subsequently claimed to have been given by someone not authorized to issue instructions for that account (including, for avoidance of doubt, instructions given by persons misrepresenting themselves as an account owner or other authorized person who accurately presents required security data elements or otherwise satisfies or complies with security and identity verification protocols); (2) To the extent BNYM does not follow the Applicable Procedures in all material respects BNYM shall be liable for that portion of the Fraud Loss not otherwise excluded by this Agreement directly arising from such conduct. In the event Fraud Loss is incurred by BNYM or its Affiliates and not excludable pursuant to the immediately preceding sentence, the Fund agrees to reimburse BNYM within a reasonable period following its receipt of a request from BNYM and reasonable evidence of the Fraud Loss. (m) This Section 10 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) Subject to the terms of this Section 10, the Administrator shall be liable to the Fund (or any person or entity claiming through the Fund) for damages only to the extent caused by the Administrator’s own intentional misconduct, bad faith or negligence with respect to its duties under this Agreement (“Breach Conduct”). (b) The Administrator’s maximum aggregate cumulative liability to the Fund and any person or entity claiming through the Fund, considered as a whole, for all Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed: (i) the fees actually paid to the Administrator by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date; or (ii) if the last Loss Date occurs during the period commencing with the Effective Date and ending on the first anniversary of the Effective Date, the fees actually paid to the Administrator by the Fund for services provided during the twelve (12) months immediately prior to the last Loss Date under this Agreement and the applicable Prior Administration & Accounting Agreement. (c) The Administrator 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. (d) The 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, instrument or other information which the Administrator reasonably believes to be genuine. The Administrator shall not be liable for any damages that are caused by actions or omissions taken by the Administrator in accordance with Written Instructions or, where obtained pursuant to and in accordance with Section 3 above, the advice of counsel for the Fund or the Fund’s investment adviser. The Administrator shall not be liable for any damages arising out of any action or omission to act by any prior service provider of the Fund or for any failure to discover any such error or omission. (e) Notwithstanding any other provision of this Agreement, in no event shall the Administrator, its affiliates or any of its or their directors, officers, employees, agents or subcontractors be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other damages which are not direct damages regardless of whether such damages were or should have been foreseeable and regardless of whether any entity EXECUTION COPY has been advised of the possibility of such damages, all and each of which damages is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in part over this Section 10(e). (f) No party may assert a cause of action against the Administrator or any of its affiliates that allegedly occurred more than 36 months immediately prior to the filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (h) This Section 10 shall survive termination of this Agreement.