LIMITATION OF LIABILITY CLAUSE. (a) The Client enters into this Agreement as custodian and agent of , the Responsible Entity of the (“Trust") and in no other capacity. (b) The parties other than the Client acknowledge that the Obligations are incurred by the Client solely in its capacity as custodian of the assets of the Trust ("Assets") and as agent of the Responsible Entity and that the Client will cease to have any obligation under this Agreement if the Client ceases for any reason to be the custodian of the Assets. (c) The Client will not be liable to pay or satisfy any Obligations except to the extent to which it is indemnified by the Responsible Entity or except out of the Assets against which it is entitled to be indemnified in respect of any liability incurred by it. (d) The parties other than the Client may enforce their rights against the Client arising from non- performance of the Obligations only to the extent of the Client’s indemnity provided above in clause 23(c). (e) If any party other than the Client 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 Client in its personal capacity; or (ii) applying to have the Client put into administration or wound up or applying to have a receiver or similar person appointed to the Client or proving in the administration or winding up of the Client. (f) Except in the case of and to the extent of fraud, gross negligence breach of trust or breach of duty on the part of the Client under its custody agreement with the Responsible Entity (which disentitles it from any indemnity out of the Assets in relation to the relevant liability), the parties other than the Client waive their rights and release the Client from any personal liability whatsoever, in respect of any loss or damage: (i) which they may suffer as a result of any: (A) breach of the Client of any of its Obligations; or (B) non-performance by the Client of its Obligations; and (ii) which cannot be paid or satisfied out of the indemnity set out above (clause (c)) in respect of any liability incurred by it. DRAFT ONLY (g) The parties other than the Client acknowledge that the whole of this Agreement is subject to this clause and the Client shall in no circumstances be required to satisfy any liability arising under, or for non-performance or breach of any Obligations under or in respect of, this Agreement 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 to the extent that this Agreement requires satisfaction out of the Assets under the Client’s control and in its possession as and when they are available to the Client to be applied in exoneration for such liability. (h) The parties acknowledge that the Responsible Entity of the Trust is responsible under its Constitution for performing a variety of obligations relating to the Trust, including under this Agreement. The parties agree that no act or omission of the Client (including any related failure to satisfy any Obligations) will constitute fraud, negligence or breach of duty of the Client for the purposes of clause (f) to the extent to which the act or omission was caused or contributed to by any failure of the Responsible Entity or any other person. (i) No attorney, agent or other person appointed in accordance with this Agreement has authority to act on behalf of the Client in a way which exposes the Client to any personal liability and no act or omission of such a person will be considered fraud, negligence or breach of duty of the Client for the purposes of clause (f). (j) Despite anything expressed or implied to the contrary in this clause 23, the Client will be personally liable for any breach of the Obligations by it or any other default by it if and to the extent that any indemnity by the Responsible Entity or indemnity out of or access to the Assets (in favour of the Client) is restricted, removed or denied on account of the Client's fraud, gross negligence, breach of trust or breach of duty under its custody agreement with the Responsible Entity. (k) All provisions of this clause 23 (except paragraph (j)) are subject to paragraph (j). (l) In this clause 23 Assets includes, but not limited to, all assets, property and rights real and personal of any value whatsoever, Constitution means the memorandum of association or articles of association of a party or any other constituent document by which a party comes into existence or provides for the governance of a party, the Obligations means all obligations and liabilities of whatever kind undertaken or incurred by, or devolving upon, the Client under or in respect of this Agreement, and Responsible Entity means (m) The preceeding provisions of this clause 23 only apply if the Client enters into this Agreement in its capacity as trustee of a trust.
Appears in 1 contract
Sources: Service Agreement
LIMITATION OF LIABILITY CLAUSE. (a) The Client enters into this Agreement as custodian and agent of , the Responsible Entity of the (“Trust") and in no other capacity.
(b) The parties other than the Client acknowledge that the Obligations are incurred by the Client solely in its capacity as custodian of the assets of the Trust ("Assets") and as agent of the Responsible Entity and that the Client will cease to have any obligation under this Agreement if the Client ceases for any reason to be the custodian of the Assets.
(c) The Client will not be liable to pay or satisfy any Obligations except to the extent to which it is indemnified by the Responsible Entity or except out of the Assets against which it is entitled to be indemnified in respect of any liability incurred by it.
(d) The parties other than the Client may enforce their rights against the Client arising from non- performance of the Obligations only to the extent of the Client’s indemnity provided above in clause 23(c).
(e) If any party other than the Client 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 Client in its personal capacity; or
(ii) applying to have the Client put into administration or wound up or applying to have a receiver or similar person appointed to the Client or proving in the administration or winding up of the Client.
(f) Except in the case of and to the extent of fraud, gross negligence breach of trust or breach of duty on the part of the Client under its custody agreement with the Responsible Entity (which disentitles it from any indemnity out of the Assets in relation to the relevant liability), the parties other than the Client waive their rights and release the Client from any personal liability whatsoever, in respect of any loss or damage:
(i) which they may suffer as a result of any:
(A) breach of the Client of any of its Obligations; or
(B) non-performance by the Client of its Obligations; and
(ii) which cannot be paid or satisfied out of the indemnity set out above (clause (c)) in respect of any liability incurred by it. DRAFT ONLYDRAFT
(g) The parties other than the Client acknowledge that the whole of this Agreement is subject to this clause and the Client shall in no circumstances be required to satisfy any liability arising under, or for non-performance or breach of any Obligations under or in respect of, this Agreement 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 to the extent that this Agreement requires satisfaction out of the Assets under the Client’s control and in its possession as and when they are available to the Client to be applied in exoneration for such liability.
(h) The parties acknowledge that the Responsible Entity of the Trust is responsible under its Constitution for performing a variety of obligations relating to the Trust, including under this Agreement. The parties agree that no act or omission of the Client (including any related failure to satisfy any Obligations) will constitute fraud, negligence or breach of duty of the Client for the purposes of clause (f) to the extent to which the act or omission was caused or contributed to by any failure of the Responsible Entity or any other person.
(i) No attorney, agent or other person appointed in accordance with this Agreement has authority to act on behalf of the Client in a way which exposes the Client to any personal liability and no act or omission of such a person will be considered fraud, negligence or breach of duty of the Client for the purposes of clause (f).
(j) Despite anything expressed or implied to the contrary in this clause 23, the Client will be personally liable for any breach of the Obligations by it or any other default by it if and to the extent that any indemnity by the Responsible Entity or indemnity out of or access to the Assets (in favour of the Client) is restricted, removed or denied on account of the Client's fraud, gross negligence, breach of trust or breach of duty under its custody agreement with the Responsible Entity.
(k) All provisions of this clause 23 (except paragraph (j)) are subject to paragraph (j).
(l) In this clause 23 Assets includes, but not limited to, all assets, property and rights real and personal of any value whatsoever, Constitution means the memorandum of association or articles of association of a party or any other constituent document by which a party comes into existence or provides for the governance of a party, the Obligations means all obligations and liabilities of whatever kind undertaken or incurred by, or devolving upon, the Client under or in respect of this Agreement, and Responsible Entity means
(m) The preceeding preceding provisions of this clause 23 only apply if the Client enters into this Agreement in its capacity as trustee of a trust.
Appears in 1 contract
Sources: Service Agreement