Common use of Mutual Exclusion of Indirect and Other Loss Clause in Contracts

Mutual Exclusion of Indirect and Other Loss. To the fullest extent permitted under law, in no event will either party or its affiliates or delegates, be liable for: (a) any indirect, incidental, consequential, special, punitive, exemplary or enhanced damages of any kind or nature whatsoever; or (b) loss of revenue, profit, goodwill, reputation, business or investment opportunity, anticipated savings; or (c) losses arising from any special circumstance of the other party or any person arising under this agreement or under law or otherwise in connection with, or in any way related to, this agreement; in each case whether or not such party or its delegates or affiliates have been advised of or otherwise might or should have anticipated, the possibility or likelihood of such damages. the exclusions of liability in this section will apply regardless of the form or type of action in which a claim is brought or under which it is made, whether in contract, tort (including negligence of any kind), warranty, strict liability, indemnity or any other legal or equitable grounds, and will survive failure of an exclusive remedy. Subject to the other provisions of this Section and to the fullest extent permitted by law, the maximum aggregate liability of the Administrator to the Trust during the Term and thereafter, arising from or in connection with this Agreement, regardless of the type or cause of action or number of causes of action, whether in contract, tort (including negligence of any kind), misrepresentation, warranty, strict liability, indemnity or other legal or equitable grounds in respect of any and all Losses will be limited to and will not exceed a sum equal to one hundred percent (100 %) of the total aggregate amount of the fees paid and/or payable by the Trust to the Administrator in respect of the Services under the Agreement in the twelve (12) month period immediately prior to the first event, act, or omission giving rise to the claim or, during the first twelve months following the Agreement Effective Date. The foregoing liability cap shall not apply to Losses incurred by the Administrator resulting from the Administrator’s gross negligence, willful misconduct, or fraud under this Agreement. The Administrator shall not 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 control, including without limitation, work stoppage, power or other mechanical failure, computer virus, natural disaster, governmental action, or communication disruption. The Trust shall indemnify and hold the Administrator and its directors, officers, employees and agents harmless from all loss, cost, damage and expense, including reasonable fees and expenses for counsel, incurred by the Administrator resulting from any claim, demand, action or suit in connection with the Administrator’s acceptance of this Agreement, any action or omission by it in the performance of its duties hereunder, or as a result of acting upon any instructions reasonably believed by it to have been duly authorized by the Trust or upon reasonable reliance on information or records given or made by the Trust or its investment adviser, provided that this indemnification shall not apply to actions or omissions of the Administrator, its officers or employees in cases of its or their own bad faith, negligence or willful misconduct. The limitation of liability and indemnification contained herein shall survive the termination of this Agreement.