Terms Relating to Liability Clause Samples
The "Terms Relating to Liability" clause defines the extent to which each party is responsible for losses, damages, or claims arising from the agreement. It typically outlines limitations on the amount or types of damages that can be recovered, such as excluding liability for indirect or consequential losses, and may set caps on total liability. This clause serves to allocate risk between the parties, providing predictability and protecting each side from potentially excessive or unforeseen financial exposure.
Terms Relating to Liability. (a) BNYM shall be liable to the Fund (or any person or entity claiming through the Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by BNYM’s intentional misconduct, willful misfeasance, bad faith or negligence in the performance of its duties under this Agreement (“Standard of Care”) and only if the Fund provides BNYM with written notice of the Loss containing a reasonably detailed description of the amount of Loss, the conduct alleged to constitute a breach of the Standard of Care and the provision of the Agreement the Fund claims to have been breached. In the absence of a finding to the contrary by an appropriate regulator or court of competent jurisdiction, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been a failure of BNYM to meet its Standard of Care.
(b) BNYM’s cumulative maximum liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, for any Losses the recovery of which is not otherwise excluded by another provision of this Agreement and regardless of the form of action or legal theory shall not exceed the fees received by BNYM for services provided hereunder during the twenty-four (24) months immediately prior to the Loss Date. If BNYM has provided services for less than twenty-four (24) months immediately prior to the date of such Loss, then BNYM’s Losses shall not exceed the fees BNYM would reasonably be expected to receive for the services provided hereunder during the first twenty-four (24) months of this Agreement. Notwithstanding the foregoing, BNYM’s liability shall not be capped in the event a Loss is attributable to the intentional misconduct or the willful misfeasance of BNYM.
(c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrec...
Terms Relating to Liability. (a) DTI shall be liable to each Fund (or any person or entity claiming through a Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to DTI's performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence ("Breach Conduct"), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. As used in this Agreement, negligence shall mean conduct not commercially reasonable under the applicable circumstances.
(b) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; job action by organized labor; interruption, loss or malfunction of utilities, transportation, internet or communications capabilities; or non-performance by third parties (other than contractors or subcontractors of DTI for causes other than those described herein) (all and any of the foregoing being an "Event Beyond Reasonable Control") . Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted.
(c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT SUBJECT TO THE EXPRESS EXCLUSION OF THIS SECTION 11(c) PROVIDED FOR IN THE LAST SENTENCE OF SECTION 5(d), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONS...
Terms Relating to Liability. (a) Subject to the terms of this Section 10, the Administrator shall be liable to the Fund (or any person or entity claiming through the Fund) for damages only to the extent caused by the Administrator’s own intentional misconduct, bad faith or negligence with respect to its duties under this Agreement (“Breach Conduct”).
(b) The Administrator’s maximum aggregate cumulative liability to the Fund and any person or entity claiming through the Fund, considered as a whole, for all Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed: (i) the fees actually paid to the Administrator by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date; or (ii) if the last Loss Date occurs during the period commencing with the Effective Date and ending on the first anniversary of the Effective Date, the fees actually paid to the Administrator by the Fund for services provided during the twelve (12) months immediately prior to the last Loss Date under this Agreement and the applicable Prior Administration & Accounting Agreement.
(c) The Administrator shall not be liable for damages (including without limitation damages caused by delays, failure, errors, interruption or loss of data) occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; national emergencies; public enemy; war; terrorism; riot; fire; flood; catastrophe; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; non-performance by a third party; failure of the mails; or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the above.
(d) The Administrator shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice, instrument or other information which the Administrator reasonably believes to be genuine. The Administrator shall not be liable for any damages that are caused by actions or omissions taken by the Administrator in accordance with Written Instructions or, where obtained pursuant to and in accordance with Section 3 ...
Terms Relating to Liability. (a) BNYM's sole and exclusive monetary liability to the Fund (and all persons claiming through or for the Fund) under this Agreement shall be for the direct money damages (i) that result from BNYM's intentional misconduct, reckless disregard, fraud or gross negligence in the performance of an obligation under this Agreement ("Liable Conduct"), and (ii) that are not excluded by another provision of this Agreement.
(b) BNYM's maximum aggregate cumulative monetary liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, for all loss, cost, expense, damages, liabilities and obligations under or related to this Agreement or the services hereunder, the recovery of which is not excluded by another provision of this Agreement, shall not exceed (i) the Fees actually paid to BNYM by the Fund for services provided hereunder during the twelve (12) calendar months immediately preceding the last Loss Date; or (ii) if the last Loss Date occurs prior to the completion of twelve (12) full calendar months following the Service Effective Date, the greater of (A) all Fees paid with respect services rendered during the full calendar months that have elapsed subsequent to the Service Effective Date ("Elapsed Months"), or (B) the average monthly amount of Fees paid during the Elapsed Months multiplied by 12. The maximum aggregate cumulative liability of BNYM as specified by this Section 11(b) is referred to herein as the "General Damage Cap".
(c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms with one or more severely destructive forces comparable to hurricane but not meeting technical hurricane criteria), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations ordered by lawful authority; interruption, loss or malfunc...
Terms Relating to Liability. (a) BNYM shall be liable to the Investment Company (or any person or entity claiming through the Investment Company) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by, (i) with respect to BNYM’s performance of the Services, conduct constituting intentional misconduct, reckless disregard or negligence (“Breach Conduct”), and (ii) with respect to obligations under this Agreement other than those described in clause (i), for breaches of this Agreement. In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Breach Conduct.
(b) BNYM’s maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, for all Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed: (i) the fees actually paid to BNYM by the Fund for services provided hereunder during the twelve (12) months immediately prior to the last Loss Date; or (ii) if the last Loss Date occurs during the period commencing with the Effective Date and ending on the first anniversary of the Effective Date, the fees actually paid to BNYM by the Fund for services provided during the twelve (12) months immediately prior to the last Loss Date under this Agreement and the applicable Prior Transfer Agency Agreement.
(c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; non-performance by third parties (other than subcontractors of BNYM for causes other than those described herein); or functions or malfunctions of the internet, firewalls, encryption...
Terms Relating to Liability. (a) BNYM shall be obligated to exercise care and diligence in the performance of its duties hereunder and to act in good faith in performing services provided for under this Agreement. BNYM shall be liable only for Loss arising out of BNYM’s failure to perform its duties under this Agreement to the extent such damages arise out of BNYM’s willful misfeasance, bad faith, gross negligence or reckless disregard of such duties (“Breach Conduct”).
(b) [reserved]
(c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakes and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; non-performance by third parties (for causes other than those described herein); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the foregoing being an “Event Beyond Reasonable Control”) . Upon the occurrence of an Event Beyond Reasonable Control, the affected Party shall be excused from any non-performance caused by the Event Beyond Reasonable Control (i) for so long as the Event Beyond Reasonable Control or damages caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted.
(d) BNYM shall not be liable for any Loss arising out of any action, omission or conduct of any prior service provider of the Fund or for any failure to discover any action, omission or conduct of any prior service provider of the Fund that caused or could cause Loss.
(e) NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, IN NO EVENT SHALL BNYM, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, FOR EXEMP...
Terms Relating to Liability. (a) BNYM shall be liable to the Fund (or any person or entity claiming through or for the Fund) for Loss the recovery of which is not otherwise excluded by another provision of this Agreement only to the extent the Loss is caused by the bad faith, intentional misconduct, reckless disregard or negligence of BNYM (“Liable Conduct”). In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Liable Conduct.
(b) BNYM’s maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, for all Losses the recovery of which is not otherwise excluded by another provision of this Agreement shall not exceed: (i) the fees actually paid to BNYM by the Fund for services provided hereunder during the term of this Agreement; or (ii) if the last Loss Date occurs during the period commencing with the Effective Date and ending on the second anniversary of the Effective Date, the greater of the amount calculated in accordance with clause (i) or $250,000.
(c) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe storms (storms of a nature substantially equivalent to hurricanes but not meeting other criteria necessary to receive an official hurricane name), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor; building or area evacuations; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; denial of service attacks; non-performance by third parties (other than subcontractors of BNYM for causes other than those described herein); or functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and any of the fore...
Terms Relating to Liability. (a) Notwithstanding any other provision of this Agreement, and notwithstanding that Pacific Life and the Investment Company are parties to this Agreement, BNYM shall have no liability under this Agreement to any party other than the Funds. BNYM’s sole and exclusive monetary liability to the Funds, including its officers and trustees (and all persons claiming through or for the Funds) under this Agreement, including Section 12(b), shall be for the direct money damages (i) that result from breaches of the Agreement by BNYM or BNYM Agents (as defined below) that constitute the intentional misconduct, reckless disregard, fraud or negligence in the performance of an obligation under this Agreement (“Liable Conduct”), and (ii) that are not excluded by another provision of this Agreement. “BNYM Agents” means employees of Affiliates, the BNY Mellon Group and third parties performing services or obligations on behalf of BNYM under this Agreement.