Common use of CONCERNING BNY Clause in Contracts

CONCERNING BNY. 1. BNY shall not be liable for any costs, expenses, damages, liabilities or claims, including reasonable attorneys’ and accountants’ fees, sustained or incurred by, or asserted against, the Fund except to the extent the same arises out of (i) the failure of BNY to exercise the care, prudence and diligence required by Section 2 of Article II hereof, or (ii) BNY’s fraud, bad faith, negligence, willful misconduct or reckless disregard of its duties hereunder. In no event shall BNY be liable to the Fund, the Board, or any third party for special, indirect or consequential damages, or for lost profits or loss of business, arising in connection with this Agreement. Notwithstanding any other provision hereof, BNY’s cumulative liability under this Agreement shall be limited to the amount of fees paid for services hereunder during the twelve (12) months immediately preceding the event first giving rise to such loss, damage or liability; provided, however, that the foregoing limitation of liability shall not apply if a court of competent jurisdiction has determined that BNY acted with fraud, bad faith, intentional misconduct or reckless disregard of its duties hereunder