Common use of DEVELOPER LIMITATION OF LIABILITY Clause in Contracts

DEVELOPER LIMITATION OF LIABILITY. 18.16.1 The Trust Company (Australia) Limited as trustee for ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust (a) The Trust Company (Australia) Limited (“Trustee”) enters into this document only in its capacity as Trustee of the ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust (“the Trust”) and in no other capacity. A liability arising under or in connection with this document is limited to and can be enforced against Trustee only to the extent to which it can be satisfied out of property of the Trust out of which Trustee is actually indemnified for the liability. This limitation of Trustee’s liability applies despite any other provision of this document and extends to all liabilities and obligations of Trustee in any way connected with any representation, warranty, conduct, omission, agreement or transaction related to this document. (b) The parties other than Trustee may not sue Trustee in any capacity other than as Trustee of the Trust, including seek the appointment of a receiver (except in relation to property of the Trust ), a liquidator, an administrator or any similar person to Trustee as Trustee or prove in any liquidation, administration or arrangement of or affecting Trustee (except in relation to property of the Trust ). (c) The provisions of this clause 18.16.1 shall, subject to clause 18.16.1(d), not apply to any obligation or liability of Trustee to the extent that it is not satisfied because under the constitution establishing the Trust or by operation of law there is a reduction in the extent of Trustee’s indemnification out of the assets of the Trust , as a result of Trustee’s failure to properly perform its duties as Trustee. For these purposes, it is agreed that Trustee cannot be regarded as having failed to properly perform its duties as Trustee to the extent to which any failure by Trustee to satisfy its obligations or breach of representation or warranty under this document has been caused or contributed to by a failure by any other party to fulfil its obligations under the document or any other act or omission of any other party. (d) Nothing in clause 18.16.1(c) shall make Trustee liable to any claim for an amount greater than the amount which the other parties would have been able to claim and recover from the assets of the Trust in relation to the relevant liability if Trustee’s right of indemnification out of the assets of the Trust has not been prejudiced by Trustee’s failure to properly perform its duties. (e) Trustee is not obliged to do or refrain from doing anything under this document (including incur any liability) unless Trustee’s liability is limited in the same manner as set out in paragraphs 18.16.1 (a)-(d) of this clause. (A) The Trust Company (Australia) Limited as custodian for DVP2 Chifley Investment Trust (a) The Trust Company (Australia) Limited (“Custodian”) enters into this agreement only as agent of Bieson Pty Limited as trustee of DVP2 Chifley Investment Trust (“Trustee”). The Custodian can only act in accordance with the terms of the agreement under which it is appointed as the Trustee’s agent and is not liable under any circumstances to any party under this agreement. This limitation of the Custodian’s liability applies despite any other provision of this agreement and extends to all liabilities and obligations of the Custodian in any way connected with any representation, warranty, conduct, omission, agreement or transaction related to this agreement. (b) The Custodian is not obliged to do or refrain from doing anything under this agreement (including, without limitation, incur any liability) unless the Custodian’s liability is limited in the same manner as set out in clause 18.16.2(B). (c) No attorney, agent, receiver or receiver and manager appointed in accordance with this agreement has authority to act on behalf of the Custodian in a way which exposes the Custodian to any liability. (d) If, whether by the express provisions of this agreement or by implication of law, the Custodian makes or is taken to have made any representation or warranty then, except for the representations and warranties that can only be within the Custodian’s actual corporate knowledge, those representations and warranties are taken to have been made by the Trustee. (B) Bieson Pty Limited as trustee for DVP2 Chifley Investment Trust (a) This limitation of the liability of Bieson Pty Limited (“Trustee”) as trustee DVP2 Chifley Investment Trust (“Trust”) applies despite any other provisions of this document and extends to all Obligations of the Trustee in any way connected with any representation, warranty, conduct, omission, agreement or transaction related to this document and to the extent of any inconsistency between the operation of this clause and any other provision of this document, the terms of this clause will prevail. (b) The Trustee enters into this document as trustee of the Trust and in no other capacity. (c) The parties other than the Trustee acknowledge that the Trustee incurs the Obligations solely in its capacity as trustee of the Trust and that the Trustee will cease to have any obligation under this document if the Trustee ceases for any reason to be trustee of the Trust. (d) Except in the case of and to the extent of fraud, negligence or breach of trust on the part of the Trustee, the Trustee will not be liable to pay or satisfy any Obligations except out of the Assets against which it is actually indemnified in respect of any liability incurred by it as trustee of the Trust. (e) Except in the case of and to the extent of fraud, negligence or breach of trust on the part of the Trustee, the parties other than the Trustee may enforce their rights against the Trustee arising from non-performance of the Obligations only to the extent of the Trustee's right of indemnity out of the Assets of the Trust. (f) Except in the case of and to the extent of fraud, negligence or breach of trust on the part of the Trustee, if any party other than the Trustee does not recover all money owing to it arising from non-performance of the Obligations it may not seek to recover the shortfall by: (i) bringing proceedings against the Trustee in its personal capacity; or (ii) applying to have the Trustee put into administration or wound up or applying to have a receiver or similar person appointed to the Trustee or proving in the administration or winding up of the Trustee. (g) Except in the case of and to the extent of fraud, negligence or breach of trust on the part of the Trustee, the parties other than the Trustee waive their rights and release the Trustee from any personal liability whatsoever, in respect of any loss or damage: (i) which they may suffer as a result of any: (A) breach by the Trustee of any of its Obligations; or (B) non-performance by the Trustee of the Obligations; and (ii) which cannot be paid or satisfied out of the Assets of which the Trustee is entitled to be indemnified in respect of any liability incurred by it as trustee of the Trust. (h) The parties other than the Trustee acknowledge that the whole of this contract is subject to this clause and the Trustee will in no circumstances be required to satisfy any liability of the Trustee arising under, or for non- performance or breach of any of its Obligations under or in respect of, this contract or under or in respect of any other document to which it is expressed to be a party out of any funds, property or assets other than the Assets of the Trust under the Trustee's control and in its possession as and when they are available to the Trustee to be applied in exoneration for such liability PROVIDED THAT if the liability of the Trustee is not fully satisfied out of the Assets of the Trust as referred to in this clause, the Trustee will be liable to pay out of its own funds, property and assets the unsatisfied amount of that liability but only to the extent of the total amount, if any, by which the Assets of the Trust have been reduced by reasons of fraud, negligence or breach of trust by the Trustee in the performance of the Trustee's duties as trustee of the Trust. (i) No attorney, agent or other person appointed in accordance with this document has authority to act on behalf of the Trustee in a way which exposes the Trustee to any personal liability (except in accordance with the provisions of this clause), and no act or omission of such a person will be considered fraud, negligence or breach of trust of the Trustee for the purposes of this clause. (j) In this clause 18.16.2