DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) In the performance of its duties hereunder, U.S. Trust shall be obligated, as applicable, to exercise the due care and diligence of a mutual fund transfer and dividend disbursing agent, and in all events to act in good faith in performing the services provided for under this Agreement. In performing its services hereunder, U.S. Trust shall be entitled to rely on any oral or written instructions, notices or other communications from the Fund and its Custodian, officers and directors, investors, agents and other service providers which U.S. Trust reasonably believes to be genuine, valid and authorized. U.S. Trust also shall be entitled to rely on the advice and opinions of outside counsel acceptable to the Fund, as necessary or appropriate. (b) Subject to the foregoing, U.S. Trust shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund, in connection with the matters to which this Agreement relates, except for a loss or expense resulting from willful misfeasance, bad faith or gross negligence on U.S. Trust's part in the performance of its duties or from reckless disregard by U.S. Trust of its obligations and duties under this Agreement. Any officer, director, partner, employee or agent of the Fund who is also an officer, director, partner, employee or agent of U.S. Trust shall be deemed to be rendering services to or acting solely for the Fund, except when rendering services or business in connection with U.S. Trust's duties hereunder. (c) Subject to Paragraph 7(b) above, U.S. Trust shall not be responsible for, and the Fund shall indemnify and hold U.S. Trust harmless from and against, any and all losses, damages, costs, reasonable attorneys' fees and expenses, payments, expenses and liabilities arising out of or attributable to: (i) all actions of U.S. Trust or its officers or agents required to be taken pursuant to this Agreement; (ii) the reliance on or use by U.S. Trust or its officers or agents of information, records, or documents which are received by U.S. Trust or its officers or agents and furnished to it or them by or on behalf of the Fund, and which have been prepared or maintained by the Fund or any other third party on behalf of the Fund; (iii) the Fund's refusal or failure to comply with the terms of this Agreement or the Fund's lack of good faith, or its actions, or lack thereof, involving gross negligence or willful misfeasance; (iv) the breach of any representation or warranty of the Fund hereunder; (v) reasonable and justified reliance by U.S. Trust on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized; (vi) the reliance on or the carrying out by U.S. Trust or its officers or agents of any proper instructions reasonably believed to be duly authorized, or requests of the Fund or recognition by U.S. Trust of any share certificates which are reasonably believed to bear the proper signatures of the officers of the Fund and the proper countersignature of any former or current transfer agent or registrar of the Fund; or (vii) the offer or sale of shares by the Fund and/or its distributor (a) in violation of any requirement under the federal securities laws or regulations or the securities laws or regulations of any state, or (b) in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state resulting from activities, actions, or omissions by the Fund or its distributor or existing or arising out of activities, actions or omissions by or on behalf of the Fund prior to the effective date of this Agreement. (d) U.S. Trust shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys' fees and expenses, payments, expenses and liabilities arising out of or attributable to U.S. Trust's refusal or failure to comply with the terms of this Agreement; U.S. Trust's breach of any representation or warranty made by it herein; or U.S. Trust's lack of good faith, or acts involving gross negligence, willful misfeasance or reckless disregard of its duties.
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DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) In the performance of its duties hereunder, U.S. Trust shall be obligated, as applicable, to exercise the due care and diligence of a mutual fund transfer and dividend disbursing agent, and in all events obligated to act in good faith in performing the services provided for under this Agreement. In performing its services hereunder, U.S. Trust shall be entitled to rely on any oral or written instructions, notices or other communications communications, including electronic transmissions, from the Fund Company and its Custodiancustodians, officers and directors, investors, agents and other service providers which U.S. Trust reasonably believes to be genuine, valid and authorized. U.S. Trust shall also shall be entitled to consult with and rely on the advice and opinions of outside legal counsel acceptable to retained by the FundCompany, as necessary or appropriate.
(b) Subject to the foregoingExcept as provided herein, U.S. Trust shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the FundCompany, in connection with the matters to which this Agreement relates, except for a loss or expense caused by or resulting from willful misfeasance, bad faith or gross negligence on U.S. Trust's part in the performance of its duties or from reckless disregard by U.S. Trust of its obligations and duties under this Agreement. Any officerperson, director, partner, employee or agent of the Fund who is even though also an officer, director, partner, employee or agent of U.S. Trust Trust, who may be or become an officer, director, partner, employee or agent of the Company, shall be deemed to be when rendering services to the Company in that capacity or acting solely for on any business of the Fund, except when rendering Company in that capacity (other than services or business in connection with U.S. Trust's duties hereunder) to be rendering such services to or acting solely for the Company and not as an officer, director, partner, employee or agent or person under the control or direction of U.S. Trust even though paid by U.S. Trust.
(c) Subject to Paragraph Paragraphs 7(b) aboveand (d), U.S. Trust shall not be responsible for, and the Fund Company shall indemnify and hold U.S. Trust harmless from and against, any and all losses, damages, costs, reasonable attorneys' fees and expenses, payments, expenses and liabilities arising out of or attributable to:
(i) all actions of U.S. Trust or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by U.S. Trust or its officers or agents of information, records, or documents which are received by U.S. Trust or its officers or agents and furnished to it or them by or on behalf of the FundCompany, and which have been prepared or maintained by the Fund Company or any other third party on behalf of the FundCompany other than U.S. Trust or any of its affiliates;
(iii) the FundCompany's refusal or failure to comply with the terms of this Agreement or the FundCompany's lack of good faith, or its actions, or lack thereof, involving gross negligence or willful misfeasance;
; (iv) the material breach of any representation or warranty of the Fund Company hereunder;
(v) reasonable and justified reliance by U.S. Trust on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by U.S. Trust or its officers or agents of any proper instructions reasonably believed to be duly authorized, or requests of the Fund or recognition by U.S. Trust of any share certificates which are reasonably believed to bear the proper signatures of the officers of the Fund and the proper countersignature of any former or current transfer agent or registrar of the Fund; or
(vii) the offer or sale of shares by the Fund and/or its distributor (a) in violation of any requirement under the federal securities laws or regulations or the securities laws or regulations of any state, or (b) in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state resulting from activities, actions, or omissions by the Fund or its distributor or existing or arising out of activities, actions or omissions by or on behalf of the Fund prior to the effective date of this Agreement.
(d) U.S. Trust shall indemnify and hold the Fund harmless from and against any and all losses, damages, costs, charges, reasonable attorneys' fees and expenses, payments, expenses and liabilities arising out of or attributable to U.S. Trust's refusal or failure to comply with the terms of this Agreement; U.S. Trust's breach of any representation or warranty made by it herein; or U.S. Trust's lack of good faith, or acts involving gross negligence, willful misfeasance or reckless disregard of its duties.
Appears in 1 contract
Sources: Mutual Funds Transfer Agency Agreement (Excelsior Funds Inc)
DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY. (a) In the performance of its duties hereunder, U.S. Trust shall be obligated, as applicable, to exercise the due care and diligence of a mutual fund transfer accounting agent and dividend disbursing agentadministrator, and in all events to act in good faith in performing the services provided for under this Agreement. In performing its services hereunder, U.S. Trust shall be entitled to rely on any oral or written instructions, notices or other communications from the Fund and its Custodian, officers and directors, investors, agents and other service providers which U.S. Trust reasonably believes to be genuine, valid and authorized. U.S. Trust shall also shall be entitled to rely on the advice and opinions of outside legal counsel acceptable to retained by the Fund, as necessary or appropriate.
(b) Subject to the foregoing, U.S. Trust shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Fund, in connection with the matters to which this Agreement relates, except for a loss or expense resulting from willful misfeasance, bad faith or gross negligence on U.S. Trust's part in the performance of its duties or from reckless disregard by U.S. Trust of its obligations and duties under this Agreement. Any officer, director, partner, employee or agent of the Fund who is also an officer, director, partner, employee or agent of U.S. Trust shall be deemed to be rendering services to or acting solely for the Fund, except when rendering services or business in connection with U.S. Trust's duties hereunder.
(c) Subject to Paragraph 7(b) above, U.S. Trust shall not be responsible for, and the Fund MAS shall indemnify and hold U.S. Trust harmless from and against, any and all losses, damages, costs, reasonable attorneys' fees and expenses, payments, expenses and liabilities arising out of or attributable to:
(i) all actions of U.S. Trust or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by U.S. Trust or its officers or agents of information, records, records or documents which are received by U.S. Trust or its officers or agents and furnished to it or them by or on behalf of MAS or the Fund, and which have been prepared or maintained by the Fund Fund, MAS or any other third party on behalf of MAS or the Fund;
(iii) the FundMAS's refusal or failure to comply with the terms of this Agreement or the FundMAS's lack of good faith, or its actions, or lack thereof, involving gross negligence or willful will misfeasance;
(iv) the breach of any representation or warranty of the Fund MAS hereunder;
(v) reasonable and justified reliance by U.S. Trust on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by U.S. Trust or its officers or agents of any proper instructions reasonably believed to be duly authorized, or requests of the Fund or recognition by U.S. Trust of any share certificates which are reasonably believed to bear the proper signatures of the officers of the Fund and the proper countersignature of any former or current transfer agent or registrar of the Fund; or
(viiv) the offer or sale of shares by the Fund and/or its distributor (a) in violation of any requirement under the federal securities laws or regulations or the securities laws or regulations of any state, or (b) in violation of any stop order or other determination or ruling by any Federal federal agency or any state agency with respect to the offer or sale of such shares in such state resulting from activities, actions, or omissions by the Fund or its distributor or existing or arising out of activities, actions or omissions by or on behalf of the Fund prior to the effective date of this Agreement.
(d) U.S. Trust shall indemnify and hold the Fund MAS harmless from and against any and all losses, damages, costs, charges, reasonable attorneys' fees and expenses, payments, expenses and liabilities arising out of or attributable to U.S. Trust's refusal or failure to comply with the terms of this Agreement; , U.S. Trust's breach of any representation or warranty made by it herein; , or U.S. Trust's lack of good faith, or acts involving gross negligence, willful misfeasance or reckless disregard of its duties.
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