Liability and Standard of Care. 14.1. The Sub-Adviser shall exercise due care and diligence and use the same skill and care in providing its services hereunder as it uses in providing services to other investment companies, accounts and customers, but the Sub-Adviser and its affiliates and their respective agents, control persons, directors, officers, employees, supervised persons and access persons shall not be liable for any action taken or omitted to be taken by the Sub-Adviser in the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of its duties. Notwithstanding the foregoing, federal securities laws and certain state laws impose liabilities under certain circumstances on persons who have acted in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any right which the Trust, a Fund or any shareholder of a Fund may have under any federal securities law or state law the applicability of which is not permitted to be contractually waived. In addition, to the extent the Sub-Adviser is acting under this Agreement with “non-discretionary” trading authority or “partially discretionary” trading authority, the Sub-Adviser will be liable for Losses (defined below) caused by the Sub-Adviser’s provision of a securities (or other financial instrument) purchase or sale recommendation to the Adviser or the Trading Adviser, but for which the Sub-Adviser failed to: (i) correctly identify one or more securities and/or financial instruments for purchase, sale, shorting, or closing out a short (e.g., wrong CUSIP number); (ii) provide the correct amount or percentage of the Fund’s investment portfolio for a particular security or financial instrument; (iii) accurately identify the type of transaction (e.g., buy, rather than short); or (iv) provide a particular recommendation to the Adviser in a timely manner (collectively, “Update Failures”).
Liability and Standard of Care. 14.1. The Adviser shall exercise due care and diligence and use the same skill and care in providing its services hereunder as it uses in providing services to other investment companies, accounts and customers, but the Adviser and its affiliates and their respective agents, control persons, directors, officers, employees, supervised persons and access persons shall not be liable for any action taken or omitted to be taken by the Adviser in the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of its duties. Notwithstanding the foregoing, federal securities laws and certain state laws impose liabilities under certain circumstances on persons who have acted in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any right which the Trust, a Fund or any shareholder of a Fund may have under any federal securities law or state law the applicability of which is not permitted to be contractually waived.
Liability and Standard of Care. 14.1. The Sub-Adviser shall exercise due care and diligence and use the same skill and care in providing its services hereunder as it uses in providing services to other investment companies, accounts and customers, but the Sub-Adviser and its affiliates and their respective agents, control persons, directors, officers, employees, supervised persons and access persons shall not be liable for any action taken or omitted to be taken by the Sub-Adviser in the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of its duties. Notwithstanding the foregoing, federal securities laws and certain state laws impose liabilities under certain circumstances on persons who have acted in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any right which the Trust, a Fund or any shareholder of a Fund may have under any federal securities law or state law the applicability of which is not permitted to be contractually waived.
Liability and Standard of Care. 14.1 The Sub-Adviser shall exercise due care and diligence and use the same skill and care in providing its services hereunder as it uses in providing services to other investment companies, accounts and customers, but the Sub-Adviser and its affiliates and their respective agents, control persons, directors, officers, employees, supervised persons and access persons shall not be liable for any action taken or omitted to be taken by the Sub- Adviser in the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of its duties. Notwithstanding the foregoing, federal securities laws and certain state laws impose liabilities under certain circumstances on persons who have acted in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any right which the Trust, a Fund or any shareholder of a Fund may have under any federal securities law or state law the applicability of which is not permitted to be contractually waived. In addition, the Sub-Adviser will be liable for Losses (defined below) caused by the Sub-Adviser’s provision of a securities (or other financial instrument) purchase, hold or sale recommendation to the Adviser or Trading Adviser, but for which the Sub-Adviser failed to: (i) correctly identify one or more securities and/or financial instruments for purchase, sale, shorting, or closing out a short (e.g., wrong CUSIP number); (ii) provide the correct amount or percentage of the Fund’s investment portfolio for a particular security or financial instrument; (iii) accurately identify the type of transaction (e.g., buy, rather than short); or (iv) provide a particular recommendation to the Adviser in a timely manner (collectively, “Update Failures”).
Liability and Standard of Care. 13.1. The Sub-Adviser shall fully and faithfully discharge all its obligations, duties and responsibilities pursuant to this Agreement, (i) solely in the best interest of the Fund and its shareholders, (ii) in good faith and with the due care, skill, prudence, and diligence under the circumstances then prevailing that a prudent, professional fiduciary investment adviser acting in a like capacity, would use in the conduct of an enterprise of a like character and with like aims, and (iii) otherwise in accordance with documents and instruments governing the Trust and each Fund. For the avoidance of doubt, the Sub-Adviser shall not deliberately use any procedure in discharging its obligations hereunder that it believes is inferior to the procedures employed by it for any other similarly situated account for which the Sub-Adviser discharges obligations (either alone or in conjunction with others) similar to those undertaken by the Sub-Adviser hereunder, except if there is a good faith basis, consistent with the standard of care under this Section 13.1, for the use of the procedure.
Liability and Standard of Care. The Sub-Adviser shall act at all times in the best interests of the Fund and shall discharge its duties with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of a similar enterprise. The Sub-Adviser shall not be liable to the Adviser, the Trust, the Fund, or the Fund’s shareholders for any action or inaction of the Sub-Adviser relating to any event whatsoever in the absence of bad faith, willful misfeasance or negligence in the performance of or the reckless disregard of the Sub-Adviser’s duties or obligations under this Agreement. In no event shall the Sub-Adviser 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 Sub-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. The Sub-Adviser, its affiliated persons, agents and employees, shall not be liable to the Adviser, the Trust or the Fund:
Liability and Standard of Care. 13.1. The Sub-Adviser shall fully and faithfully discharge all its obligations, duties and responsibilities pursuant to this Agreement, (i) solely in the best interest of the Fund and its shareholders, (ii) in good faith and with the due care, skill, prudence, and diligence under the circumstances then prevailing that a prudent, professional fiduciary investment adviser acting in a like capacity, would use in the conduct of an enterprise of a like character and with like aims, and (iii) otherwise in accordance with documents and instruments governing the Trust and each Fund. For the avoidance of doubt, the Sub-Adviser shall not deliberately use any procedure in discharging its obligations hereunder that it believes is inferior to the procedures employed by it for any other similarly situated account for which the Sub-Adviser discharges obligations (either alone or in conjunction with others) similar to those undertaken by the Sub-Adviser hereunder, except if there is a good faith basis, consistent with the standard of care under this Section 13.1, for the use of the procedure.
13.2. The Sub-Adviser shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser or the Trust or any of the Adviser Indemnitees (as defined below) as a result of any error of judgment by the Sub-Adviser with respect to the Fund, except as may otherwise be provided by the 1940 Act or any other federal securities or commodities law and except as provided below. Nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Sub-Adviser for, and the Sub-Adviser shall indemnify and hold harmless the Trust, the Adviser, and all affiliated persons thereof within the meaning of Section 2(a)(3) of the 1940 Act (collectively, “Adviser Indemnitees”), against any and all losses, claims, damages, liabilities or litigation (including reasonable and documented legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, the 1934 Act, the 1940 Act, the Advisers Act, the Code, the CEA, under any other statute, law, rule or regulation, at common law or otherwise, arising out of the Sub-Adviser’s responsibilities hereunder (i) to the extent of and as a result of the willful misconduct, bad faith, fraud, negligence or breach of fiduciary duty by the Sub-Adviser, any of the Sub-Adviser’s employees or representa...
Liability and Standard of Care. CONSULTANT shall perform services for OWNER using that degree of care and skill ordinarily exercised by consultants practicing in the same or similar locale as the Project, on projects of a similar scope and nature. CONSULTANT’s liability to OWNER for any damages arising in any way out of performance or breach of this Contract or breach of CONSULTANT’s standard of care, is limited to the net proceeds recoverable under CONSULTANT’s Professional Liability Insurance policy identified in paragraph 16d, “net proceeds recoverable” being defined as the proceeds payable under the policy after deductions for expenses, attorney’s fees or other claims paid under such policy. In no event shall either OWNER or CONSULTANT be entitled to consequential damages. OWNER acknowledges that the CONSULTANT is a Corporation and agrees that any claim made by the OWNER arising out of any act or omission of any director, officer or employee of the CONSULTANT in the execution or performance of this Contract shall be made against the CONSULTANT and not against such director, officer, or employee and OWNER waives any claim against all of CONSULTANT’s directors, shareholders, officers and employees.
Liability and Standard of Care. The Servicer will render the services called for hereunder in good faith in accordance with practices generally followed by prudent operators in the oil and gas industry and by Persons engaged in providing similar services. If, due to any [negligence] of the Servicer or its employees, the Servicer fails to perform its obligations hereunder in accordance with the terms of this Agreement, then the Servicer shall be liable to the Partnership and shall indemnify the Partnership, its permitted successors and assigns and its officers, directors, employees, agents and Affiliates for any actual losses, costs, and expenses incurred by any such party which are attributable to such negligent failure to perform. In no event, however, shall the Servicer ever be liable to any such party under this Agreement or in connection with services provided hereunder for any punitive, incidental, consequential or indirect damages in tort, contract or otherwise, nor shall the Servicer's duties hereunder ever be construed to make it in any way responsible for any losses due to the amount of Hydrocarbons actually produced and attributable to any Production Payment being insufficient to cause termination of such Production Payment or to cause the return to the Trust of the Acquisition Capital (plus any anticipated yield thereon) for such Production Payment.
