Common use of Standard of Liability and Indemnification Clause in Contracts

Standard of Liability and Indemnification. Standard of Liability. Morgan Stanley and its stockholders, directors, officers, employees, ▇▇▇ i▇▇ ▇▇ ▇heir respective successors or assigns shall not be liable to the Customer, its partners, or any of its or their respective successors or assigns, except by reason of acts, or omissions due to, bad faith, misconduct, or negligence, or for not having acted in good faith in the reasonable belief that such acts or omissions were in, or not opposed to, the best interests of the Customer, or by reason of any material breach of this Agreement by Morgan Stanley. Without limiting the foregoing, Morgan Stanley shal▇ ▇▇▇▇ ▇▇ ▇▇▇▇onsibility or liability to Custome▇ ▇▇▇▇u▇▇▇▇ (▇) in connection with the performance or non-performance by any contract market, clearing house, clearing firm or other third party (including floor brokers not selected by Morgan Stanley and banks) to Morgan Stanley of its obligations in r▇▇▇▇▇▇ ▇▇ ▇▇▇ Contract or oth▇▇ ▇▇▇p▇▇▇▇ ▇▇ Customer; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley whether or not made or given at the request of Custo▇▇▇; (i▇▇) ▇▇ a result of Morgan Stanley's reliance on any instructions, notices and communic▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇elieves to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanley's obligations hereunder directly or indirectly cause▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇nce of any contingency beyond the control of Morgan Stanley including, but not limited to, the unscheduled closu▇▇ ▇▇ a▇ ▇▇▇▇▇nge or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, GLOBEX, ACCESS, or other electronic trading systems, facilities or services), it being understood that Morgan Stanley shall be excused from performance of its obligations ▇▇▇▇▇n▇▇▇ ▇▇▇ such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action taken by Morgan Stanley or its floor brokers to comply with Applicable Law; ▇▇ (▇▇) ▇▇▇ ▇▇y acts or omissions of those neither employed nor supervised by Morgan Stanley. In no event will Morgan Stanley be liable to Custom▇▇ ▇▇▇ ▇▇▇▇▇▇▇ential, incide▇▇▇▇ ▇▇ ▇▇▇c▇▇▇ ▇▇▇ages hereunder.

Standard of Liability and Indemnification. Standard of Liability. Morgan Stanley and its stockholders, directors, officers, employees, affiliates (as defined below) shall not be l▇▇▇▇▇ i▇t▇ ▇▇ ▇heir respective successors or assigns shall not be liable to the Customer▇▇▇mer, its general partner or its limited partners, or any of its or their respective successors or assigns, except by reason of actsfor any act, omission, conduct, or omissions due toactivity undertaken by or on behalf of the Customer pursuant to this Agreement which Morgan Stanley determines, bad in good faith, misconductto be in the best interes▇ ▇▇ ▇h▇ ▇▇▇▇▇mer, unless such act, omission, conduct, or negligence, or for not having acted in good faith in the reasonable belief that such acts or omissions were in, or not opposed to, the best interests of the Customer, or by reason of any material breach of this Agreement activity by Morgan StanleyStanley or its affiliates constituted misconduct or negligen▇▇. Without limiting ▇▇t▇▇▇▇ ▇▇miting the foregoing, Morgan Stanley shal▇ ▇▇▇▇ ▇▇ ▇▇▇▇onsibility shall have no responsibility or liability to Custome▇ ▇▇▇▇u▇▇▇▇ (▇) in connection with the performance or non-performance by any contract market, clearing house, clearing firm or other third party (including floor brokers not selected by Morgan Stanley and banks) to Morgan Stanley of its obligations in r▇▇▇▇▇▇ ▇▇ ▇▇▇ Contract or oth▇▇ ▇▇▇p▇▇▇▇ ▇▇ Customer; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley whether or not made or given at the request of Custo▇▇▇; (i▇▇) ▇▇ a result of Morgan Stanley's reliance on any instructions, notices and communic▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇elieves to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanley's obligations hereunder directly or indirectly cause▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇nce of any contingency beyond the control of Morgan Stanley including, but not limited to, the unscheduled closu▇▇ ▇▇ a▇ ▇▇▇▇▇nge or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, GLOBEX, ACCESS, or other electronic trading systems, facilities or services), it being understood that Morgan Stanley shall be excused from performance of its obligations ▇▇▇▇▇n▇▇▇ ▇▇▇ such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action taken by Morgan Stanley or its floor brokers to comply with Applicable Law; ▇▇ (▇▇) ▇▇▇ ▇▇y acts or omissions of those neither employed nor supervised by Morgan Stanley. In no event will Morgan Stanley be liable to Custom▇▇ ▇▇▇ ▇▇▇▇▇▇▇ential, incide▇▇▇▇ ▇▇ ▇▇▇c▇▇▇ ▇▇▇ages hereunder.

Standard of Liability and Indemnification. Standard of Liability. Morgan Stanley and its stockholders, directors, officers, employees, affiliates (as defined below) shall not be l▇▇▇▇▇ i▇t▇ ▇▇ ▇heir respective successors ▇▇▇mer, the general partner or assigns shall not be liable to the limited partners ("Limited Partners") of Customer, its partners, or any of its or their respective successors or assigns, except by reason of actsfor any act, omission, conduct, or omissions due toactivity undertaken by or on behalf of the Customer pursuant to this Agreement which Morgan Stanley determines, bad in good faith, misconductto be in the best interes▇ ▇▇ ▇h▇ ▇▇▇▇▇mer, unless such act, omission, conduct, or negligence, or for not having acted in good faith in the reasonable belief that such acts or omissions were in, or not opposed to, the best interests of the Customer, or by reason of any material breach of this Agreement activity by Morgan StanleyStanley or its affiliates constituted misconduct or negligen▇▇. Without limiting ▇▇t▇▇▇▇ ▇▇miting the foregoing, Morgan Stanley shal▇ ▇▇▇▇ ▇▇ ▇▇▇▇onsibility shall have no responsibility or liability to Custome▇ ▇▇▇▇u▇▇▇▇ (▇) )in connection with the performance or non-performance by any contract market, clearing house, clearing firm or other third party (including floor brokers not selected by Morgan Stanley and banks) to Morgan Stanley of its obligations in r▇▇▇▇▇▇ ▇▇ ▇▇▇ Contract or oth▇▇ ▇▇▇p▇▇▇▇ ▇▇ Customer; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley whether or not made or given at the request of Custo▇▇▇; (i▇▇) ▇▇ a result of Morgan Stanley's reliance on any instructions, notices and communic▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇elieves to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanley's obligations hereunder directly or indirectly cause▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇nce of any contingency beyond the control of Morgan Stanley including, but not limited to, the unscheduled closu▇▇ ▇▇ a▇ ▇▇▇▇▇nge or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, GLOBEX, ACCESS, or other electronic trading systems, facilities or services), it being understood that Morgan Stanley shall be excused from performance of its obligations ▇▇▇▇▇n▇▇▇ ▇▇▇ such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action taken by Morgan Stanley or its floor brokers to comply with Applicable Law; ▇▇ (▇▇) ▇▇▇ ▇▇y acts or omissions of those neither employed nor supervised by Morgan Stanley. In no event will Morgan Stanley be liable to Custom▇▇ ▇▇▇ ▇▇▇▇▇▇▇ential, incide▇▇▇▇ ▇▇ ▇▇▇c▇▇▇ ▇▇▇ages hereunder. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Morgan Stanley and its affiliates from and against any loss, liabil▇▇▇, ▇a▇▇▇▇, ▇ost or expense (including attorneys' and accountants' fees and expenses incurred in the defense of any demands, claims or lawsuits) actually and reasonably incurred arising from any act, omission, conduct, or activity undertaken by Morgan Stanley on behalf of Customer, including, without limitation, ▇▇▇ d▇▇▇▇▇▇, claims or lawsuits initiated by a Limited Partner (or a limited partner of the Limited Partner) (or assignee thereof); provided that (i) Morgan Stanley has determined, in good faith, that the act, omissio▇, ▇▇▇d▇▇▇, ▇▇ activity giving rise to the claim for indemnification was in the best interests of the Customer, and (ii) the act, omission, conduct or activity that was the basis for such loss, liability, damage, cost or expense was not the result of misconduct or negligence. Notwithstanding the foregoing, no indemnification of Morgan Stanley or its affiliates by Customer shall be permitted for ▇▇▇ ▇o▇▇▇▇, ▇iabilities or expenses arising from or out of any alleged violation of federal or state securities laws unless (a) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee, or (b) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee, or (c) a court of competent jurisdiction approves a settlement of the claims against the particular indemnitee and finds that indemnification of the settlement and related costs should be made; provided, with regard to such court approval, the indemnitee must apprise the court of the position of the SEC and the positions of the respective securities administrators of Massachusetts, Missouri, Tennessee and/or those other states and jurisdictions in which the plaintiffs claim that they were offered or sold Units, with respect to indemnification for securities laws violations before seeking court approval for indemnification. Furthermore, in any action or proceeding brought by a Limited Partner (or a limited partner of the Limited Partner) in the right of Customer to which Morgan Stanley or any affiliate thereof is a party defendant, any s▇▇▇ ▇▇r▇▇▇ ▇▇▇ll be indemnified only to the extent and subject to the conditions specified in the Delaware Revised Uniform Limited Partnership Act, as amended, and this Section 5. The Customer shall make advances to Morgan Stanley or its affiliates hereunder only if: (i) the demand, ▇▇▇▇▇ ▇▇▇▇▇▇▇ or legal action relates to the performance of duties or services by such persons to Customer; (ii) such demand, claim lawsuit or legal action is not initiated by a Limited Partner (or a limited partner of the Limited Partner); and (iii) such advances are repaid, with interest at the legal rate under Delaware law, if the person receiving such advance is ultimately found not to be entitled to indemnification hereunder. Indemnification by Morgan Stanley. Morgan Stanley shall indemnify, defend and hold har▇▇▇▇▇ C▇▇▇▇▇▇▇ a▇▇ ▇▇▇ ▇▇▇▇▇▇▇ors or assigns from and against any losses, liabilities, damages, costs or expenses (including in connection with the defense or settlement of claims; provided Morgan Stanley has approved such settlement) incurred as a direct r▇▇▇▇▇ o▇ ▇▇▇ ▇ctivities of Morgan Stanley or its affiliates; provided, further, that the act, ▇▇▇▇▇▇o▇, ▇▇▇▇uct or activity giving rise to the claim for indemnification was the result of bad faith, misconduct or negligence of Morgan Stanley or its affiliates.

Standard of Liability and Indemnification. Standard of Liability. Morgan Stanley and its stockholders, directors, officers, employees, affiliates (as defined below) shall not be l▇▇▇▇▇ i▇t▇ ▇▇ ▇heir respective successors ▇▇▇mer, the general partner or assigns shall not be liable to the Customer, its limited partners, or any of its or their respective successors or assigns, except by reason of actsfor any act, omission, conduct, or omissions due toactivity undertaken by or on behalf of the Customer pursuant to this Agreement which Morgan Stanley determines, bad in good faith, misconductto be in the best interes▇ ▇▇ ▇h▇ ▇▇▇▇▇mer, unless such act, omission, conduct, or negligence, or for not having acted in good faith in the reasonable belief that such acts or omissions were in, or not opposed to, the best interests of the Customer, or by reason of any material breach of this Agreement activity by Morgan StanleyStanley or its affiliates constituted misconduct or negligen▇▇. Without limiting ▇▇t▇▇▇▇ ▇▇miting the foregoing, Morgan Stanley shal▇ ▇▇▇▇ ▇▇ ▇▇▇▇onsibility shall have no responsibility or liability to Custome▇ ▇▇▇▇u▇▇▇▇ (▇) in connection with the performance or non-performance by any contract market, clearing house, clearing firm or other third party (including floor brokers not selected by Morgan Stanley and banks) to Morgan Stanley of its obligations in r▇▇▇▇▇▇ ▇▇ ▇▇▇ Contract or oth▇▇ ▇▇▇p▇▇▇▇ ▇▇ Customer; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley whether or not made or given at the request of Custo▇▇▇; (i▇▇) ▇▇ a result of Morgan Stanley's reliance on any instructions, notices and communic▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇elieves to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanley's obligations hereunder directly or indirectly cause▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇nce of any contingency beyond the control of Morgan Stanley including, but not limited to, the unscheduled closu▇▇ ▇▇ a▇ ▇▇▇▇▇nge or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, GLOBEX, ACCESS, or other electronic trading systems, facilities or services), it being understood that Morgan Stanley shall be excused from performance of its obligations ▇▇▇▇▇n▇▇▇ ▇▇▇ such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action taken by Morgan Stanley or its floor brokers to comply with Applicable Law; ▇▇ (▇▇) ▇▇▇ ▇▇y acts or omissions of those neither employed nor supervised by Morgan Stanley. In no event will Morgan Stanley be liable to Custom▇▇ ▇▇▇ ▇▇▇▇▇▇▇ential, incide▇▇▇▇ ▇▇ ▇▇▇c▇▇▇ ▇▇▇ages hereunder. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Morgan Stanley and its affiliates from and against any loss, liabil▇▇▇, ▇a▇▇▇▇, ▇ost or expense (including attorneys' and accountants' fees and expenses incurred in the defense of any demands, claims or lawsuits) actually and reasonably incurred arising from any act, omission, conduct, or activity undertaken by Morgan Stanley on behalf of Customer pursuant to this Agreement, in▇▇▇▇▇▇g, ▇▇▇▇▇ut limitation, any demands, claims or lawsuits initiated by a Limited Partner (or assignee thereof); provided that (i) Morgan Stanley has determined, in good faith, that the act, omissio▇, ▇▇▇d▇▇▇, ▇▇ activity giving rise to the claim for indemnification was in the best interests of the Customer, and (ii) the act, omission, conduct or activity that was the basis for such loss, liability, damage, cost or expense was not the result of misconduct or negligence. Notwithstanding anything to the contrary contained in the foregoing, neither Morgan Stanley nor any of its affiliates shall be indemnified by th▇ ▇▇▇▇o▇▇▇ ▇▇▇ any losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws unless (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee, or (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee, or (iii) a court of competent jurisdiction approves a settlement of the claims against the particular indemnitee and finds that indemnification of the settlement and related costs should be made, provided with regard to such court approval, the indemnitee must apprise the court of the position of the SEC and the positions of the respective securities administrators of Massachusetts, Missouri, Tennessee and/or those other states and jurisdictions in which the plaintiffs claim that they were offered or sold Units, with respect to indemnification for securities laws violations before seeking court approval for indemnification. Furthermore, in any action or proceeding brought by a Limited Partner in the right of Customer to which Morgan Stanley or any affiliate thereof is a party defendant, any s▇▇▇ ▇▇r▇▇▇ ▇▇▇ll be indemnified only to the extent and subject to the conditions specified in the Delaware Revised Uniform Limited Partnership Act, as amended, and this Section 5. The Customer shall make advances to Morgan Stanley or its affiliates hereunder only if: (i) the demand, ▇▇▇▇▇ ▇▇▇▇▇▇▇ or legal action relates to the performance of duties or services by such persons to Customer; (ii) such demand, claim lawsuit or legal action is not initiated by a Limited Partner; and (iii) such advances are repaid, with interest at the legal rate under Delaware law, if the person receiving such advance is ultimately found not to be entitled to indemnification hereunder. Indemnification by Morgan Stanley. Morgan Stanley shall indemnify, defend and hold har▇▇▇▇▇ C▇▇▇▇▇▇▇ a▇▇ ▇▇▇ ▇▇▇▇▇▇▇ors or assigns from and against any losses, liabilities, damages, costs or expenses (including in connection with the defense or settlement of claims; provided Morgan Stanley has approved such settlement) incurred as a direct r▇▇▇▇▇ o▇ ▇▇▇ ▇ctivities of Morgan Stanley or its affiliates, provided, further, that the act, ▇▇▇▇▇▇o▇, ▇▇▇▇uct or activity giving rise to the claim for indemnification was the result of bad faith, misconduct or negligence of Morgan Stanley or its affiliates.

Standard of Liability and Indemnification. Standard of Liability. Morgan Stanley and its stockholders, directors, officers, employees, affiliates (as defined below) shall not be l▇▇▇▇▇ i▇t▇ ▇▇ ▇heir respective successors or assigns shall not be liable to the Customer▇▇▇mer, its general partner or its limited partners, or any of its or their respective successors or assigns, except by reason of actsfor any act, omission, conduct, or omissions due toactivity undertaken by or on behalf of Customer pursuant to this Agreement which Morgan Stanley determines, bad in good faith, misconduct, or negligence, or for not having acted in good faith to be in the reasonable belief that such acts or omissions were in, or not opposed to, the best interests of the Customer, or by reason of any material breach of this Agreement by Morgan Stanley. Without limiting the foregoing, Morgan Stanley shalinteres▇▇ ▇▇▇▇ t▇▇ ▇▇▇▇onsibility omer, unless such act, omission, conduct, or activity by Morgan Stanley or its affiliates constituted misconduct or negligen▇▇. ▇▇t▇▇▇▇ ▇▇miting the foregoing, Morgan Stanley shall have no responsibility or liability to Custome▇ ▇▇▇▇u▇▇▇▇ (▇) in connection with the performance or non-performance by any contract market, clearing house, clearing firm or other third party (including floor brokers not selected by Morgan Stanley and banks) to Morgan Stanley of its obligations in r▇▇▇▇▇▇ ▇▇ ▇▇▇ Contract or oth▇▇ ▇▇▇p▇▇▇▇ ▇▇ Customer; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley whether or not made or given at the request of Custo▇▇▇; (i▇▇) ▇▇ a result of Morgan Stanley's reliance on any instructions, notices and communic▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇elieves to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanley's obligations hereunder directly or indirectly cause▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇nce of any contingency beyond the control of Morgan Stanley including, but not limited to, the unscheduled closu▇▇ ▇▇ a▇ ▇▇▇▇▇nge or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, GLOBEX, ACCESS, or other electronic trading systems, facilities or services), it being understood that Morgan Stanley shall be excused from performance of its obligations ▇▇▇▇▇n▇▇▇ ▇▇▇ such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action taken by Morgan Stanley or its floor brokers to comply with Applicable Law; ▇▇ (▇▇) ▇▇▇ ▇▇y acts or omissions of those neither employed nor supervised by Morgan Stanley. In no event will Morgan Stanley be liable to Custom▇▇ ▇▇▇ ▇▇▇▇▇▇▇ential, incide▇▇▇▇ ▇▇ ▇▇▇c▇▇▇ ▇▇▇ages hereunder.