Common use of Indemnification and Limitation of Liability Clause in Contracts

Indemnification and Limitation of Liability. A. DSC will not be liable to the Funds for any loss incurred by the Funds as a result of any error of judgment, mistake of law, act or omission in the course of, or in connection with the Services rendered by, DSC under the Agreement in the absence of fraud, negligence or willful misconduct of DSC or the reckless disregard of its duties under the Agreement. B. DSC agrees to indemnify, defend and hold harmless the Funds, their trustees, directors, officers, employees, agents and nominees and their respective successors and permitted assigns from and against claims, demands, actions, suits, judgments, liabilities, losses, fines, damages, costs, charges, and counsel fees (collectively, “Losses”) resulting directly and proximately from DSC’s fraud, negligence or willful misconduct in the performance of the Services, or reckless disregard of its duties under this Agreement. C. In order for these indemnification provisions to apply, a party or parties seeking indemnification or to be held harmless shall fully and promptly advise the indemnifying party or parties in writing of all pertinent facts concerning the situation in question. The party or parties seeking indemnification will use reasonable care to identify and notify the indemnifying party or parties in writing promptly concerning any situation which presents or appears likely to present the probability of an indemnification claim. However, failure to do so in good faith shall not affect the rights under this provision unless the indemnifying party or parties are materially prejudiced by such failure. As to any matter eligible for indemnification, the indemnified party or parties shall act reasonably and in accordance with good faith business judgment, and shall not effect any settlement or confess judgment without the consent of the indemnifying party or parties, which consent shall not be withheld or delayed unreasonably. D. The indemnifying party or parties shall be entitled to participate in the defense at their own expense, or assume the defense, of any suit brought to enforce any claims subject to this indemnity provision. If the indemnifying party or parties elect to assume the defense, they shall be conducted by counsel of their choosing that is reasonably satisfactory to the indemnified party or parties; the indemnified party or parties shall bear the fees and expenses of any additional counsel they retain. If the indemnifying party or parties do not elect to assume the defense of such suit, they will reimburse the indemnified party or parties for the reasonable fees and expenses of any counsel the indemnified party or parties retain, which is reasonably satisfactory to the indemnifying party or parties. The indemnifying party or parties shall not effect any settlement without the consent of the indemnified party or parties (which shall not be withheld or delayed unreasonably) unless such settlement imposes no liability, responsibility or other obligation upon the indemnified party or parties and relieves them of all fault. E. The parties shall have a duty to mitigate damages for which the other party or parties may become responsible. F. No party hereto shall be liable to any other party for any special, indirect, incidental or consequential damages of any kind whatsoever. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE FUNDS, DSC, THEIR AFFILIATES OR ANY OF ITS OR THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), LOSS OF BUSINESS, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification and Limitation of Liability. A. DSC will not be liable to the Funds for any loss incurred by the Funds as a result of any error of judgment, mistake of law, act or omission in the course of, or in connection with the Services rendered by, DSC under the Agreement in the absence of fraud, negligence or willful misconduct of DSC or the reckless disregard of its duties under the Agreement. B. DSC agrees to indemnify, defend and hold harmless the Funds, their trustees, directors, officers, employees, agents and nominees and their respective successors and permitted assigns from and against claims, demands, actions, suits, judgments, liabilities, losses, fines, damages, costs, charges, and counsel fees (collectively, “"Losses”") resulting directly and proximately from DSC’s 's fraud, negligence or willful misconduct in the performance of the Services, or reckless disregard of its duties under this Agreement. C. In order for these indemnification provisions to apply, a party or parties seeking indemnification or to be held harmless shall fully and promptly advise the indemnifying party or parties in writing of all pertinent facts concerning the situation in question. The party or parties seeking indemnification will use reasonable care to identify and notify the indemnifying party or parties in writing promptly concerning any situation which presents or appears likely to present the probability of an indemnification claim. However, failure to do so in good faith shall not affect the rights under this provision unless the indemnifying party or parties are materially prejudiced by such failure. As to any matter eligible for indemnification, the indemnified party or parties shall act reasonably and in accordance with good faith business judgment, and shall not effect any settlement or confess judgment without the consent of the indemnifying party or parties, which consent shall not be withheld or delayed unreasonably. D. The indemnifying party or parties shall be entitled to participate in the defense at their own expense, or assume the defense, of any suit brought to enforce any claims subject to this indemnity provision. If the indemnifying party or parties elect to assume the defense, they shall be conducted by counsel of their choosing that is reasonably satisfactory to the indemnified party or parties; the indemnified party or parties shall bear the fees and expenses of any additional counsel they retain. If the indemnifying party or parties do not elect to assume the defense of such suit, they will reimburse the indemnified party or parties for the reasonable fees and expenses of any counsel the indemnified party or parties retain, which is reasonably satisfactory to the indemnifying party or parties. The indemnifying party or parties shall not effect any settlement without the consent of the indemnified party or parties (which shall not be withheld or delayed unreasonably) unless such settlement imposes no liability, responsibility or other obligation upon the indemnified party or parties and relieves them of all fault. E. The parties shall have a duty to mitigate damages for which the other party or parties may become responsible. F. No party hereto shall be liable to any other party for any special, indirect, incidental or consequential damages of any kind whatsoever. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE FUNDS, DSC, THEIR AFFILIATES OR ANY OF ITS OR THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ ' FEES), LOSS OF BUSINESS, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification and Limitation of Liability. A. DSC will not be liable to the Funds Fund for any loss incurred by the Funds Fund as a result of any error of judgment, mistake of law, act or omission in the course of, or in connection with the Services rendered by, DSC under the Agreement in the absence of fraud, negligence or willful misconduct of DSC or the reckless disregard of its duties under the Agreement. B. DSC agrees to indemnify, defend and hold harmless the FundsFund, their its trustees, directors, officers, employees, agents and nominees and their respective successors and permitted assigns from and against claims, demands, actions, suits, judgments, liabilities, losses, fines, damages, costs, charges, and counsel fees (collectively, “"Losses”") resulting directly and proximately from DSC’s 's fraud, negligence or willful misconduct in the performance of the Services, or reckless disregard of its duties under this Agreement. C. In order for these indemnification provisions to apply, a party or parties seeking indemnification or to be held harmless shall fully and promptly advise the indemnifying party or parties in writing of all pertinent facts concerning the situation in question. The party or parties seeking indemnification will use reasonable care to identify and notify the indemnifying party or parties in writing promptly concerning any situation which presents or appears likely to present the probability of an indemnification claim. However, failure to do so in good faith shall not affect the rights under this provision unless the indemnifying party or parties are materially prejudiced by such failure. As to any matter eligible for indemnification, the indemnified party or parties shall act reasonably and in accordance with good faith business judgment, and shall not effect any settlement or confess judgment without the consent of the indemnifying party or partiesparty, which consent shall not be withheld or delayed unreasonably. D. The indemnifying party or parties shall be entitled to participate in the defense at their its own expense, or assume the defense, of any suit brought to enforce any claims subject to this indemnity provision. If the indemnifying party or parties elect elects to assume the defense, they it shall be conducted by counsel of their its choosing that is reasonably satisfactory to the indemnified party or partiesparty; the indemnified party or parties shall bear the fees and expenses of any additional counsel they retainit retains. If the indemnifying party or parties do does not elect to assume the defense of such suit, they it will reimburse the indemnified party or parties for the reasonable fees and expenses of any counsel the indemnified party or parties retainretains, which is reasonably satisfactory to the indemnifying party or partiesparty. The indemnifying party or parties shall not effect any settlement without the consent of the indemnified party or parties (which shall not be withheld or delayed unreasonably) unless such settlement imposes no liability, responsibility or other obligation upon the indemnified party or parties and relieves them it of all fault. E. The parties shall have a duty to mitigate damages for which the other party or parties may become responsible. F. No party hereto shall be liable to any other party for any special, indirect, incidental or consequential damages of any kind whatsoever. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE FUNDSFUND, DSC, THEIR AFFILIATES OR ANY OF ITS OR THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ ' FEES), LOSS OF BUSINESS, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification and Limitation of Liability. A. DSC will not be liable to the Funds Fund for any loss incurred by the Funds Fund as a result of any error of judgment, mistake of law, act or omission in the course of, or in connection with the Services rendered by, DSC under the Agreement in the absence of fraud, negligence or willful misconduct of DSC or the reckless disregard of its duties under the Agreement. B. DSC agrees to indemnify, defend and hold harmless the FundsFund, their its trustees, directors, officers, employees, agents and nominees and their respective successors and permitted assigns from and against claims, demands, actions, suits, judgments, liabilities, losses, fines, damages, costs, charges, and counsel fees (collectively, “Losses”) resulting directly and proximately from DSC’s fraud, negligence or willful misconduct in the performance of the Services, or reckless disregard of its duties under this Agreement. C. In order for these indemnification provisions to apply, a party or parties seeking indemnification or to be held harmless shall fully and promptly advise the indemnifying party or parties in writing of all pertinent facts concerning the situation in question. The party or parties seeking indemnification will use reasonable care to identify and notify the indemnifying party or parties in writing promptly concerning any situation which presents or appears likely to present the probability of an indemnification claim. However, failure to do so in good faith shall not affect the rights under this provision unless the indemnifying party or parties are materially prejudiced by such failure. As to any matter eligible for indemnification, the indemnified party or parties shall act reasonably and in accordance with good faith business judgment, and shall not effect any settlement or confess judgment without the consent of the indemnifying party or partiesparty, which consent shall not be withheld or delayed unreasonably. D. The indemnifying party or parties shall be entitled to participate in the defense at their its own expense, or assume the defense, of any suit brought to enforce any claims subject to this indemnity provision. If the indemnifying party or parties elect elects to assume the defense, they it shall be conducted by counsel of their its choosing that is reasonably satisfactory to the indemnified party or partiesparty; the indemnified party or parties shall bear the fees and expenses of any additional counsel they retainit retains. If the indemnifying party or parties do does not elect to assume the defense of such suit, they it will reimburse the indemnified party or parties for the reasonable fees and expenses of any counsel the indemnified party or parties retainretains, which is reasonably satisfactory to the indemnifying party or partiesparty. The indemnifying party or parties shall not effect any settlement without the consent of the indemnified party or parties (which shall not be withheld or delayed unreasonably) unless such settlement imposes no liability, responsibility or other obligation upon the indemnified party or parties and relieves them it of all fault. E. The parties shall have a duty to mitigate damages for which the other party or parties may become responsible. F. No party hereto shall be liable to any other party for any special, indirect, incidental or consequential damages of any kind whatsoever. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE FUNDSFUND, DSC, THEIR AFFILIATES OR ANY OF ITS OR THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), LOSS OF BUSINESS, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification and Limitation of Liability. A. DSC (a) Each party will not be liable to the Funds for any loss incurred by the Funds as a result of any error of judgment, mistake of law, act or omission in the course of, or in connection with the Services rendered by, DSC under the Agreement in the absence of fraud, negligence or willful misconduct of DSC or the reckless disregard of its duties under the Agreement. B. DSC agrees to indemnify, defend defend, and hold harmless the Fundsother parties and their affiliates, their subsidiaries, parents, trustees, directors, officers, employeesdirectors, agents and nominees and their respective successors and permitted assigns from and against any and all claims, demands, actions, suits, judgments, liabilities, losses, fines, damages, costs, charges, and reasonable counsel fees and other expenses (collectively, “"Losses”") resulting directly and proximately from DSC’s fraudthe indemnifying party's: (i) willful misfeasance, bad faith or negligence or willful misconduct in the performance of the Servicesof, or the reckless disregard of of, its duties obligations under this Agreement, (ii) violation of law or regulation applicable to it in connection with its obligations under this Agreement, or (iii) breach of this Agreement; provided, however, that no party will be entitled to indemnification pursuant to this Agreement to the extent that such party's willful misfeasance, bad faith or negligence in the performance of, or the reckless disregard of, its obligations under this Agreement, violation of law or regulation applicable to it in connection with its obligations under this Agreement, or breach of this Agreement contributed to the Losses for which such party seeks to be indemnified. C. (b) In order for these that the indemnification provisions to contained in this Agreement shall apply, if in any case a party may be asked to indemnify or parties seeking indemnification or to be held harmless hold the other party harmless, the other party shall fully and promptly advise the indemnifying party or parties in writing of all pertinent facts concerning the situation in question. The party or parties seeking indemnification will use all reasonable care to identify and notify the indemnifying party or parties in writing promptly concerning any situation which presents or appears likely to present the probability of an such a claim for indemnification claim. Howeveragainst the indemnifying party, but failure to do so in good faith shall not affect the rights under this provision unless hereunder except to the extent the indemnifying party or parties are is materially prejudiced by such failurethereby. As to any matter eligible for indemnification, the an indemnified party or parties shall act reasonably and in accordance with good faith business judgment, judgment and shall not effect any settlement or confess judgment without the consent of the indemnifying party or partiesparty, which consent shall not be withheld or delayed unreasonably. D. (c) The indemnifying party or parties shall be entitled at its own expense to participate in in, or, if it so elects, to assume the defense at their own expenseof, any claim or assume the defense, of any suit brought to enforce any claims subject to this indemnity provision. If the indemnifying party or parties elect elects to assume the defensedefense of any such claim, they the defense shall be conducted by counsel of their choosing that is chosen by it and reasonably satisfactory to the indemnified party. In the event that the indemnifying party or parties; elects to assume the defense of any suit and retain counsel, the indemnified party or parties shall bear the fees and expenses of any additional counsel they retainretained by it. If the An indemnifying party or parties do not elect to assume the defense of such suit, they will reimburse the indemnified party or parties for the reasonable fees and expenses of any counsel the indemnified party or parties retain, which is reasonably satisfactory to the indemnifying party or parties. The indemnifying party or parties shall not effect any settlement without the consent of the indemnified party or parties (which shall not be withheld or delayed unreasonablyunreasonably by the indemnified party) unless such settlement imposes no liability, responsibility or other obligation upon the indemnified party or parties and relieves them it of all fault. If the indemnifying party does not elect to assume the defense of suit, it will reimburse the indemnified party for the reasonable fees and expenses of counsel retained by the indemnified party and reasonably satisfactory to the indemnifying party. E. The parties shall have a duty to mitigate damages for which the other party or parties may become responsible. F. No party hereto shall be liable to any other party for any special, indirect, incidental or consequential damages of any kind whatsoever. (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE FUNDS, DSC, THEIR AFFILIATES OR WILL ANY OF ITS OR THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS PARTY BE LIABLE UNDER THIS AGREEMENT FOR EXEMPLARYANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIALCONSEQUENTIAL OR SIMILAR DAMAGES, INCIDENTALINCLUDING LOST REVENUE, INDIRECT LOST PROFITS AND LOST OR CONSEQUENTIAL DAMAGED DATA. (e) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL BISYS' AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL DAMAGES (INCLUDINGPERMITTED UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE FEES THAT BISYS RECEIVES UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE BISYS RECEIVES WRITTEN NOTICE OF THE FIRST CLAIM FOR DAMAGES. THIS LIMITATION ON PERMITTED DAMAGES WILL NOT APPLY TO DAMAGES TO WHICH BISYS WOULD OTHERWISE BE SUBJECT BY REASON OF WILLFUL MISFEASANCE, WITHOUT LIMITATION, ATTORNEYS’ FEES), LOSS BAD FAITH OR GROSS NEGLIGENCE IN THE PERFORMANCE OF BUSINESSITS DUTIES UNDER THIS AGREEMENT, OR LOST PROFITS, EACH BY REASON OF WHICH IS HEREBY EXCLUDED BY AGREEMENT BISYS' RECKLESS DISREGARD OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESITS OBLIGATIONS AND DUTIES UNDER THIS AGREEMENT.