Common use of Terms Relating to Liability Clause in Contracts

Terms Relating to Liability. (a) With respect to BNYM’s obligations under this Agreement, BNYM shall be liable to the Fund (or any person or entity claiming through or for the Fund) for loss, cost, expense and damages caused by a breach of any such obligation, the recovery of which is not excluded by another provision of this Agreement, only to the extent the breach constitutes intentional misconduct, reckless disregard or negligence of BNYM (“Liable Conduct”). In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Liable Conduct. (b) BNYM’s maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, during the effectiveness of the Agreement, for all loss, cost, expense and damages the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed two (2) times the fees actually paid to BNYM by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date. In the event a maximum aggregate cumulative liability pursuant to this Section 11(b) must be calculated in connection with a last Loss Date occurring during the first twelve months of this Agreement, fees paid under the Prior Agreement for the portion of the 12-month calculation period that services were provided under the Prior Agreement shall be used in such calculation. Confidential And Proprietary Execution Version (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with wind, rain or hail forces comparable to a 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; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; denial of service attacks; non-performance by third parties (other than subcontractors of BNYM 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 foregoing (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) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund 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. (1) Notwithstanding any other provision of the Agreement, in no event shall BNYM, 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 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 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 11(e)(1). (2) Notwithstanding any other provision of the Agreement, in no event shall the Fund, its affiliates (as determined under the 0000 Xxx) 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 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 such loss is hereby excluded by agreement of the parties; provided, however: (i) under no circumstances shall this Section 11(e)(2) be construed to restrict in any manner or limit in whole or in part BNYM’s ability to recover any fee or reimbursable expense owed to it under this Agreement; and (ii) the Fund’s indemnification, defense and hold harmless obligations under Section 12, and any action brought due to a breach of Section 12, are not subject to the foregoing provision of this Section 11(e)(2). 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 11(e)(2). (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 18 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. Confidential And Proprietary Execution Version (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (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.

Terms Relating to Liability. (a) With respect to BNYM’s obligations under this Agreement, BNYM shall be liable to the Fund Investment Company (or any person or entity claiming through or for the FundInvestment Company) for loss, cost, expense and damages caused by a breach of any such obligation, Loss the recovery of which is not otherwise excluded by another provision of this Agreement, Agreement only to the extent the breach constitutes Loss is caused by, (i) with respect to BNYM’s performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence of BNYM (“Liable Breach Conduct”), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Liable Breach Conduct. (b) BNYM’s maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, during the effectiveness of the Agreement, for all loss, cost, expense and damages Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed two exceed: (2i) times the fees actually paid to BNYM by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date. In ; or (ii) if the event a maximum aggregate cumulative liability pursuant to this Section 11(b) must be calculated in connection with a last Loss Date occurring occurs during the period commencing with the Effective Date and ending on the first twelve months of this Agreement, fees paid under the Prior Agreement for the portion anniversary of the Effective Date, the fees actually paid to BNYM by the Fund for services provided during the twelve (12-month calculation period that services were provided ) months immediately prior to the last Loss Date under this Agreement and the applicable Prior Agreement shall be used in such calculation. Confidential And Proprietary Execution VersionTransfer Agency Agreement. (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with wind, rain or hail forces comparable to a 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; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; denial of service attacks; non-performance by third parties (other than subcontractors of BNYM 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 foregoing (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 (i) 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.. Confidential And Proprietary Execution Version (d) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund 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. (1e) Notwithstanding any other provision of the AgreementNOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, in no event shall IN NO EVENT SHALL BNYM, its Affiliates or any of its or their directorsITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, officersOFFICERS, employeesEMPLOYEES, agents or subcontractors be liable under any theory of tortAGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, contractCONTRACT, strict liability or other legal or equitable theory for lost profitsSTRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, for exemplaryFOR EXEMPLARY, punitivePUNITIVE, specialSPECIAL, incidentalINCIDENTAL, indirect or consequential damagesINDIRECT OR CONSEQUENTIAL DAMAGES, or for any other 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 damagesOR 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 such loss is hereby excluded by agreement of the partiesALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. For purposes of clarificationFOR PURPOSES OF CLARIFICATION: no other provision of this Agreement shall be interpreted to conditionNO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, limitLIMIT, modifyMODIFY, nullify or otherwise prevail in whole or in part over this Section 11(e)(1). (2) Notwithstanding any other provision of the Agreement, in no event shall the Fund, its affiliates (as determined under the 0000 Xxx) 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 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 such loss is hereby excluded by agreement of the parties; provided, however: (i) under no circumstances shall this Section 11(e)(2) be construed to restrict in any manner or limit in whole or in part BNYM’s ability to recover any fee or reimbursable expense owed to it under this Agreement; and (ii) the Fund’s indemnification, defense and hold harmless obligations under Section 12, and any action brought due to a breach of Section 12, are not subject to the foregoing provision of this Section 11(e)(2). 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 11(e)(2NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(e). (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 18 36 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. Confidential And Proprietary Execution Version. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (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 Company acknowledges that BNYM makes and such third parties make 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 it 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 herein, including without limitation performance of the Licensed Services (as defined in the Schedule C) and other BNYM services provided for in Schedule C. (i) This Section 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) With respect to BNYM’s 's obligations under this Agreement, BNYM shall be liable to the Fund (or any person or entity claiming through or for the Fund) for loss, cost, expense and damages caused by a breach of any such obligation, the recovery of which is not excluded by another provision of this Agreement, only to the extent the breach constitutes intentional misconduct, reckless disregard or negligence of BNYM (“"Liable Conduct”"). In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Liable Conduct. (b) BNYM’s 's maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, during the effectiveness of the Agreement, for all lossLoss, cost, expense and damages the recovery of which is permitted and not otherwise excluded by another provision of this Agreement Agreement, shall not exceed two exceed: (2i) times the fees actually paid to BNYM by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date. In ; or (ii) if the event a maximum aggregate cumulative liability pursuant to this Section 11(b) must be calculated in connection with a last Loss Date occurring occurs during the period commencing with the Services Effective Date and ending on the first twelve months anniversary of this Agreementthe Services Effective Date, the greater of (A) the amount calculated in accordance with clause (i) (i.e., fees paid under through the Prior last Loss Date), or (B) the average monthly amount of fees paid during such period multiplied by the number of full months this Agreement for the portion of the 12-month calculation period that services were provided under the Prior Agreement shall be used is in effect during such calculation. Confidential And Proprietary Execution Versionperiod. (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with wind, rain or hail forces comparable a destructive force substantially equivalent to a hurricane hurricanes but not meeting technical criteria necessary for hurricane criteriadesignation), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; denial of service attacks; non-performance by third parties (other than subcontractors of BNYM 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 foregoing (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) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund 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. (1e) Notwithstanding any other provision of the Agreement, in no event shall BNYM, 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 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 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 11(e)(1). (2) Notwithstanding any other provision of the Agreement, in no event shall the Fund, its affiliates (as determined under the 0000 Xxx) 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 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 such loss is hereby excluded by agreement of the parties; provided, however: (i) under no circumstances shall this Section 11(e)(2) be construed to restrict in any manner or limit in whole or in part BNYM’s ability to recover any fee or reimbursable expense owed to it under this Agreement; and (ii) the Fund’s indemnification, defense and hold harmless obligations under Section 12, and any action brought due to a breach of Section 12, are not subject to the foregoing provision of this Section 11(e)(2). 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 11(e)(211(e). (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 18 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. Confidential And Proprietary Execution Version. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (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 check or draft drawn by a shareholder or a check or draft issued to a shareholder (or alternate payee) that is alleged to be fraudulently endorsed, a signature guarantee, signature validation or other guarantee or certification that is alleged to be fraudulently procured or tendered, or any other matter involving a payment instrument or system that may give rise to a claim under the Uniform Commercial Code as adopted by a particular State or Territory of the United States ("UCC") or under a signature guarantee or other program, such as the Securities Transfer Agents Medallion Program, based on whole or in part on provisions of the UCC ("UCC Program"), BNYM will take commercially reasonable measures to investigate the matter ("UCC Matter") and if it reasonably determines at any time due to the investigation that a shareholder or the Fund possesses a valid claim under the UCC to recover any amount from a bank or other financial institution expressly subject to the UCC, BNYM will when considered commercially reasonable under the UCC take measures to file a claim on behalf of the Fund for recovery of the relevant amount with the appropriate party under the UCC or the UCC Program ("Initial Claim"). BNYM will inform the Fund if the claim is denied in whole or in part, if any recovery is made or if BNYM gets no response to the claim, and in the event of any recovery will consult with the Fund with respect to the depositing of the recovered amount in a Service Account, the crediting of a shareholder account or any other appropriate conduct, and will provide reasonable cooperation at the Fund's cost and expense with any actions the Fund may subsequently elect to take to seek any further recovery. Absent Liable Conduct in BNYM's processing of any underlying transaction, as between the Fund and BNYM, the Fund shall be solely responsible for any amounts not recovered or not capable of being recovered in a UCC Matter, any market exposure (gain or loss) experienced by a shareholder or the Fund as a result of a UCC Matter, any fraud or similar conduct not constituting a UCC Matter or involving a forged or unauthorized drawer signature or altered instrument, and all costs and expenses of seeking any recovery in a UCC Matter other than costs associated with filing any Initial Claim. This Section 11(i) sets forth the sole responsibility of BNYM with respect to the matters addressed herein. (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) Notwithstanding any other provision of the Agreement, 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, action or demand made or sought under this Agreement between parties to this Agreement . Each party shall bear its own such costs and expenses. (l) This Section 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) With respect to BNYM’s obligations under this Agreement, BNYM shall be liable to the Fund Investment Company (or any person or entity claiming through or for the FundInvestment Company) for loss, cost, expense and damages caused by a breach of any such obligation, Loss the recovery of which is not otherwise excluded by another provision of this Agreement, Agreement only to the extent the breach constitutes Loss is caused by, (i) with respect to BNYM’s performance of the services, conduct constituting intentional misconduct, reckless disregard or negligence of BNYM (“Liable Breach Conduct”), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Liable Breach Conduct. (b) BNYM’s maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, during the effectiveness of the Agreement, for all loss, cost, expense and damages Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed two exceed: (2i) times the fees actually paid to BNYM by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date. In ; or (ii) if the event a maximum aggregate cumulative liability pursuant to this Section 11(b) must be calculated in connection with a last Loss Date occurring occurs during the period commencing with the Effective Date and ending on the first twelve months of this Agreement, fees paid under the Prior Agreement for the portion anniversary of the Effective Date, the fees actually paid to BNYM by the Fund for services provided during the twelve (12-month calculation period that services were provided ) months immediately prior to the last Loss Date under this Agreement and the applicable Prior Agreement shall be used in such calculation. Confidential And Proprietary Execution VersionTransfer Agency Agreement. (c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with wind, rain or hail forces comparable to a 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; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; denial of service attacks; non-performance by third parties (other than subcontractors of BNYM 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 foregoing (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 (i) 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.. Confidential And Proprietary Execution Version (d) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund 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. (1e) Notwithstanding any other provision of the AgreementNOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, in no event shall IN NO EVENT SHALL BNYM, its Affiliates or any of its or their directorsITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, officersOFFICERS, employeesEMPLOYEES, agents or subcontractors be liable under any theory of tortAGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, contractCONTRACT, strict liability or other legal or equitable theory for lost profitsSTRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, for exemplaryFOR EXEMPLARY, punitivePUNITIVE, specialSPECIAL, incidentalINCIDENTAL, indirect or consequential damagesINDIRECT OR CONSEQUENTIAL DAMAGES, or for any other 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 damagesOR 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 such loss is hereby excluded by agreement of the partiesALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. For purposes of clarificationFOR PURPOSES OF CLARIFICATION: no other provision of this Agreement shall be interpreted to conditionNO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, limitLIMIT, modifyMODIFY, nullify or otherwise prevail in whole or in part over this Section 11(e)(1). (2) Notwithstanding any other provision of the Agreement, in no event shall the Fund, its affiliates (as determined under the 0000 Xxx) 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 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 such loss is hereby excluded by agreement of the parties; provided, however: (i) under no circumstances shall this Section 11(e)(2) be construed to restrict in any manner or limit in whole or in part BNYM’s ability to recover any fee or reimbursable expense owed to it under this Agreement; and (ii) the Fund’s indemnification, defense and hold harmless obligations under Section 12, and any action brought due to a breach of Section 12, are not subject to the foregoing provision of this Section 11(e)(2). 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 11(e)(2NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(e). (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 18 36 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. Confidential And Proprietary Execution Version. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (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 Company acknowledges that BNYM makes and such third parties make 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 it 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 herein, including without limitation performance of the Licensed Services (as defined in the Schedule C) and other BNYM services provided for in Schedule C. (i) This Section 11 shall survive termination of this Agreement.