Common use of Terms Relating to Liability Clause in Contracts

Terms Relating to Liability. (a) BNYM shall at all times act in good faith and with reasonable care in its performance of services under this Agreement (the “Standard of Care”). To the extent BNYM uses subcontractors pursuant to Section 17 of this Agreement, BNYM shall be liable to the Fund for each such subcontractor’s performance to the extent it would be liable if performing the conduct itself. BNYM shall be liable to the Fund (or any person or entity claiming through or for the Fund) for any loss, cost, expense and damages resulting from a breach of the Agreement solely to the extent such loss, cost, expense or damages directly results from the intentional misconduct, reckless disregard, fraud or negligence of BNYM (“Liable Conduct”) and the recovery of such loss, cost, expense or damages is not excluded by another provision of this Agreement. In the absence of a finding to the contrary, which shall include without limitation a finding that BNYM acted with intentional misconduct, reckless disregard of its duties, fraud, or negligence, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been Liable Conduct.