Common use of Terms Relating to Liability Clause in Contracts

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 EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(e). (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 15 months after the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. (h) With respect to securities data, information and research furnished to BNYM by third parties and included in the BNYM System (“Securities Data”), Company acknowledges that BNYM and such third parties make no warranty concerning the Securities Data and BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and BNYM shall not be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed Services (as defined in Schedule C) and other BNYM services provided for in Schedule C. (i) This Section 11 shall survive termination of this Agreement.

Terms Relating to Liability. (a) BNYM BNYM’s sole and exclusive monetary liability to the Fund (and all persons claiming through or for the Fund) under this Agreement shall be obligated to exercise care and diligence for the direct money damages that result from the intentional misconduct, reckless disregard, fraud or negligence of BNYM 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 an obligation 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 Liable Conduct”). (b) [reserved]BNYM’s maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, for all loss, cost, expense, damages and liabilities under this Agreement, the recovery of which is not excluded by another provision of this Agreement, shall not exceed the fees actually paid to BNYM by the Fund for services provided hereunder during the eighteen (18) full calendar months immediately preceding the last Loss Date. (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 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 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, including invoking disaster recovery or business continuity plans when applicable. (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[Reserved.] (e) NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENTNotwithstanding any other provision of this Agreement, IN NO EVENT SHALL except to the extent a provision may expressly provide for indemnification of all Loss, in which case indemnification for all Loss shall be permitted, in no event shall BNYM, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORSits Affiliates or any of its or their directors, OFFICERSofficers, EMPLOYEESemployees, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORTagents or subcontractors be liable under the Agreement under any theory of tort, CONTRACTcontract, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITSstrict liability or other legal or equitable theory for lost profits, FOR EXEMPLARYfor exemplary, PUNITIVEpunitive, SPECIALspecial, INCIDENTALincidental, INDIRECT OR CONSEQUENTIAL DAMAGESindirect or consequential damages, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESor for any other losses which are not direct damages regardless of whether such losses or damages were or should have been foreseeable and regardless of whether any entity or person has been advised of the possibility of such losses or damages, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(e)all and each of which such loss is hereby excluded by agreement of the parties. (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 15 twenty-four (24) months after the Fund became aware or reasonably should have been aware of the first event or occurrence comprising the conduct or alleged conduct upon which the cause of action is based. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. BNYM shall be permitted to pursue recovery of amounts paid by BNYM to persons not entitled to such amounts or payments, including through all available legal remedies, and the Fund agrees to cooperate with reasonable requests of BNYM at BNYM’s expense and request; provided, however, that the foregoing shall not obligate the Fund to pursue litigation. (h) With respect to securities data, files, reports, information and research furnished to BNYM by third parties (not delegated duties, subcontracted or otherwise engaged by BNYM to perform the services hereunder on its behalf) and included in the BNYM System (“Securities Data”), Company acknowledges that BNYM and such third parties make no warranty concerning the Securities Data and BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and BNYM shall not be liable for Loss caused by Securities Data not being provided to it with the content and at the time which is standard for the industry or which is required for performance of any service provided for herein, including without limitation performance of the Licensed Services (as defined in Schedule C) and other BNYM services provided for in Schedule C. (i) This Section 11 shall survive termination of this Agreement.Fund acknowledges

Terms Relating to Liability. (a) BNYM shall be obligated BNYM's sole and exclusive monetary liability to exercise care the Fund (and diligence in all persons claiming through or for 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 Fund) under this Agreement to shall be for the extent such direct money damages arise out (i) that result from BNYM's breaches of BNYM’s willful misfeasancethe Agreement that constitute intentional misconduct, bad faithreckless disregard, gross fraud or negligence or reckless disregard ("Liable Conduct"), and (ii) that are not excluded by another provision of such duties (“Breach Conduct”)this Agreement. (b) [reserved]BNYM's maximum aggregate cumulative liability to the Fund and all persons or entities claiming through the Fund, considered as a whole, for all loss, cost, expense, damages and liabilities under this Agreement, the recovery of which is not excluded by another provision of this Agreement, shall not exceed the Fees actually paid to BNYM by the Fund for services provided hereunder during the twenty-four (24) calendar months immediately preceding the last Loss Date; provided, however, in the event a calculation under this Section 11(b) must occur prior to the completion of twenty-four (24) full calendar months after the Effective Date, fees paid to BNYM under the Prior Agreement shall be used for the calculation for the full calendar months that fees are not paid under this 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: 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 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 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, including invoking disaster recovery or business continuity plans when applicable. (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 LossFund. (e) NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENTNotwithstanding any other provision of this Agreement, IN NO EVENT SHALL except to the extent a provision may expressly provide for indemnification of all Loss, in which case indemnification for all Loss shall be permitted, in no event shall BNYM, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORSits Affiliates or any of its or their directors, OFFICERSofficers, EMPLOYEESemployees, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORTagents Confidential And Proprietary Execution Version or subcontractors be liable under the Agreement under any theory of tort, CONTRACTcontract, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITSstrict liability or other legal or equitable theory for lost profits, FOR EXEMPLARYfor exemplary, PUNITIVEpunitive, SPECIALspecial, INCIDENTALincidental, INDIRECT OR CONSEQUENTIAL DAMAGESindirect or consequential damages, OR FOR ANY OTHER DAMAGES WHICH ARE NOT DIRECT DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE AND REGARDLESS OF WHETHER ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESor for any other losses which are not direct damages regardless of whether such losses or damages were or should have been foreseeable and regardless of whether any entity or person has been advised of the possibility of such losses or damages, ALL AND EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FOR PURPOSES OF CLARIFICATION: NO OTHER PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED TO CONDITION, LIMIT, MODIFY, NULLIFY OR OTHERWISE PREVAIL IN WHOLE OR IN PART OVER THIS SECTION 11(e)all and each of which such loss is hereby excluded by agreement of the parties. (f) No party may assert a claim or cause of action (or, if applicable, commence an arbitration or other alternate dispute resolution proceeding) against BNYM or any of its affiliates more than 15 18 months after the such party first event becomes aware of events or occurrence occurrences comprising the conduct or alleged conduct upon which the cause of action is based. (g) Each party shall have a duty to mitigate damages for which the other party may become responsible. BNYM shall be permitted to pursue recovery of amounts paid by BNYM to persons not entitled to such amounts or payments, including through all available legal remedies, and the Fund agrees to cooperate with BNYM (at BNYM's expense and request). (h) With respect to securities data, files, reports, information and research furnished to BNYM by third parties (not delegated duties, subcontracted or otherwise engaged by BNYM to perform the services hereunder on its behalf) and included in the BNYM System (“"Securities Data”"), Company the Fund acknowledges that BNYM and such third parties make makes no warranty concerning the Securities Data and BNYM disclaims all responsibility for the Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, and BNYM shall not be liable for Loss caused by Errant Securities Data (as defined below); provided, however, with respect to transaction activity communicated to BNYM by the DTCC or NSCC, BNYM will maintain commercially reasonable processes and procedures to detect and attempt to resolve rejected transactions. "Errant Securities Data" means Securities Data not being provided to it BNYM with the content and at the time which is standard for the industry or which is required for or used in the performance of any service provided for hereinin the Agreement. (i) If BNYM becomes aware of a matter that involves a signature guarantee, signature validation, or any other guarantee or certification regarding a signature, document or instrument, a fraudulent signature, document or instrument, a document or instrument that is alleged to be fraudulently procured, tendered or negotiated, any other matter involving a payment instrument, a payment or funds transfer system, or a payment clearance system, and any other matter that may give rise to a claim for recovery under applicable law or regulation or the rules of an industry utility (such as the NSCC or NACHA), BNYM will take commercially reasonable measures to investigate the facts of the matter and upon the conclusion of the investigation provide to the Fund with access to all materials and information gathered during the investigation not subject to a confidentiality obligation to third parties and thereafter, as between the Fund and BNYM, any further action on behalf of the Fund or a shareholder in connection with the matter investigated shall be the sole and exclusive responsibility of the Fund. BNYM shall cooperate reasonably to provide information in its possession at the time in any ongoing investigation conducted by the Fund into such matters. (j) BNYM shall be entitled to rely on, and engage in conduct based upon, its reasonable interpretation of "Legal Authority" (which is hereby defined to mean all laws and all regulations, rules, legal process and other acts and communications of an official nature of governmental, quasi-governmental bodies, regulatory and self-regulatory bodies) and the analysis and advice of legal counsel, including such reliance and conduct in circumstances when available Legal Authority is in conflict or does not provide unambiguous precedent or guidance. BNYM may rely and act in accordance with the analysis and advice of legal counsel that is reasoned notwithstanding the existence or availability of a differing legal analysis or advice or of different interpretations. For the avoidance of doubt, such conduct is included within the Confidential And Proprietary Execution Version conduct described in clause (b) of Section 12 and the rights described in Section 12 apply in the event the Fund requests that BNYM engage in conduct other than in accordance with BNYM's reasonable interpretation of Legal Authority or reasoned legal analysis or legal advice and BNYM engages in such conduct. (k) In connection with any dispute or action between the parties to this Agreement, unless recovery of legal fees or expenses is expressly provided for by a particular provision: no party to this Agreement shall be liable to any other party to this Agreement for any costs or expenses of any nature related to legal counsel, legal representation or legal action, including without limitation performance costs and expenses associated with litigation, threatened litigation and dispute resolution, court costs and costs of arbitration, discovery, experts, settlement and investigation that arise in connection with any claim, indemnification right, action or demand made or sought under this Agreement; each party shall bear its own such costs and expenses. (1) Any Loss incurred by any party to the Agreement or its Affiliates or any other party, including a current or former Fund shareholder, as a result of fraud by a Shareholder or other person, including without limitation Loss incurred in connection with any one or more of the Licensed Services events or circumstances described immediately below ("Fraud Loss"), shall, as defined between BNYM and the Fund, be the responsibility and liability of the Fund, if in Schedule connection with all related purchase and/or redemption transactions BNYM complied in all material respects with the Written Procedures applicable to such transactions ("Applicable Procedures"): (i) The acceptance, processing, negotiation or crediting to an account of a payment for the purchase of Shares (whether a check, permissible cash equivalent, ACH transfer, wire transfer or other permissible payment instrument or method) that is (A) subsequently determined or claimed to be fraudulent, unauthorized or otherwise invalid, (B) an electronic funds transfer that is returned, reversed, reclaimed or otherwise withdrawn, or (C) an instrument that is dishonored, rejected or returned after the Fund's hold period on new purchases expires; (ii) Multiple deposit, negotiation or other taking possession of the proceeds of a distribution, such as (A) the remote deposit of a check through a "smart phone" or other mobile check-depositing application combined with the cashing of the same check at a check cashing agency, or (B) a shareholder reporting a distribution check as lost, stolen or missing combined with a request for a replacement payment by electronic funds transfer followed by the cashing at a check cashing agency of the check reported lost, stolen or missing; or (iii) The receipt in good order and the processing of instructions, whether oral, written, electronic, sent via Internet, automated voice or by other permissible means, regarding the redemption of shares in an account and the distribution of the proceeds of that redemption or any other financial or maintenance transaction, including without limitation changing the bank account of record, that are subsequently claimed to have been given by someone not authorized to issue instructions for that account (including, for avoidance of doubt, instructions given by persons misrepresenting themselves as an account owner or other authorized person who accurately presents required security data elements or otherwise satisfies or complies with security and identity verification protocols); (2) To the extent BNYM services provided does not follow the Applicable Procedures in all material respects BNYM shall be liable for in Schedule C. that portion of the Fraud Loss not otherwise excluded by this Agreement directly arising from such conduct. In the event Fraud Loss is incurred by BNYM or its Affiliates and not excludable pursuant to the immediately preceding sentence, the Fund agrees to reimburse BNYM within a reasonable period following its receipt of a request from BNYM and reasonable evidence of the Fraud Loss. (im) This Section 11 shall survive termination of this Agreement.. Confidential And Proprietary Execution Version