Common use of WHEN ▇ Clause in Contracts

WHEN ▇. ▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER 7.1 Standard of Care; Liability (a) ▇.▇. ▇▇▇▇▇▇ will use reasonable care in performing its obligations under this Agreement. ▇.▇. ▇▇▇▇▇▇ will not be in violation of this Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care. Global Custody Agreement – New York – General – May 2012 (b) ▇.▇. ▇▇▇▇▇▇ will be liable for the Customer’s direct damages to the extent they result from ▇.▇. ▇▇▇▇▇▇’▇ fraud, negligence or willful misconduct in performing its duties as set out in this Agreement and to the extent provided in Section 5.2(a). Nevertheless, under no circumstances will ▇.▇. ▇▇▇▇▇▇ be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to the Accounts, ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇ role as custodian. (c) The Customer will indemnify the ▇.▇. ▇▇▇▇▇▇ Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of the ▇.▇. ▇▇▇▇▇▇ Indemnitees in connection with or arising out of (i) ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, provided the ▇.▇. ▇▇▇▇▇▇ Indemnitees have not acted with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question or (ii) any ▇.▇. ▇▇▇▇▇▇ Indemnitee’s status as a holder of record of the Customer’s Financial Assets. Nevertheless, the Customer will not be obligated to indemnify any ▇.▇. ▇▇▇▇▇▇ Indemnitee under the preceding sentence with respect to any Liability for which ▇.▇. ▇▇▇▇▇▇ is liable under Section 5.2(a) of this Agreement. (d) The Customer agrees that ▇.▇. ▇▇▇▇▇▇ provides no service in relation to, and therefore has no duty or responsibility to: (i) question Instructions or make any suggestions to the Customer or an Authorized Person regarding such Instructions; (ii) supervise or make recommendations with respect to investments or the retention of Financial Assets; (iii) advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any Security other than as provided in Section 2.7(b) of this Agreement; and (iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which ▇.▇. ▇▇▇▇▇▇ is instructed to deliver Financial Assets or cash. ▇.▇. ▇▇▇▇▇▇ is not responsible or liable in any way for the genuineness or validity of any Security or instrument received, delivered or held by ▇.▇. ▇▇▇▇▇▇ in physical form that appears to be genuine and valid.

WHEN ▇. ▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER 7.1 Standard of Care; Liability (a) ▇.▇. ▇▇▇▇▇▇ will use reasonable care in performing its obligations under this Agreement. In the absence of negligence, fraud or willful misconduct, ▇.▇. ▇▇▇▇▇▇ will not be in violation of this Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care. Global Custody Agreement – New York – General – May 2012. (b) ▇.▇. ▇▇▇▇▇▇ will be liable for the Customer’s direct damages to the extent they result from ▇.▇. ▇▇▇▇▇▇’▇ fraud, negligence or willful misconduct in performing its duties as set out in this Agreement and to the extent provided in Section 5.2(a). Nevertheless, under no circumstances will ▇.▇. ▇▇▇▇▇▇ be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to the Accounts, ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇ role as custodian. (c) The Customer will indemnify the ▇.▇. ▇▇▇▇▇▇ Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of the ▇.▇. ▇▇▇▇▇▇ Indemnitees in connection with or arising out of (i) ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, provided the ▇.▇. ▇▇▇▇▇▇ Indemnitees have not acted Global Custody Agreement - New York - General - May 2012 with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question or (ii) any ▇.▇. ▇▇▇▇▇▇ Indemnitee’s status as a holder of record of the Customer’s Financial Assets. Nevertheless, the Customer will not be obligated to indemnify any ▇.▇. ▇▇▇▇▇▇ Indemnitee under the preceding sentence with respect to any Liability for which ▇.▇. ▇▇▇▇▇▇ is liable under Section 5.2(a) of this Agreement. (d) The Customer agrees that ▇.▇. ▇▇▇▇▇▇ provides no service in relation to, and therefore has no duty or responsibility to: (i) question Instructions or make any suggestions to the Customer or an Authorized Person regarding such Instructions; (ii) supervise or make recommendations with respect to investments or the retention of Financial Assets; (iii) advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any Security other than as provided in Section 2.7(b) of this Agreement; and (iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which ▇.▇. ▇▇▇▇▇▇ is instructed to deliver Financial Assets or cash. ▇.▇. ▇▇▇▇▇▇ is not responsible or liable in any way for the genuineness or validity of any Security or instrument received, delivered or held by ▇.▇. ▇▇▇▇▇▇ in physical form that appears to be genuine and valid.

WHEN ▇. ▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER 7.1 Standard of Care; Liability (a) ▇.▇. ▇▇▇▇▇▇ will use reasonable care in performing its obligations under this Agreement. ▇.▇. ▇▇▇▇▇▇ will not be in violation of this Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care. Global Custody Agreement – New York – General – May 20122012 EXECUTION COPY (b) ▇.▇. ▇▇▇▇▇▇ will be liable for the Customer’s direct damages to the extent they result from ▇.▇. ▇▇▇▇▇▇’▇ fraud, negligence or willful misconduct in performing its duties as set out in this Agreement and to the extent provided in Section 5.2(a). Nevertheless, under no circumstances will ▇.▇. ▇▇▇▇▇▇ be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to the Accounts, ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇ role as custodian. (c) The Customer will indemnify the ▇.▇. ▇▇▇▇▇▇ Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of the ▇.▇. ▇▇▇▇▇▇ Indemnitees in connection with or arising out of (i) ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, provided the ▇.▇. ▇▇▇▇▇▇ Indemnitees have not acted with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question or (ii) any ▇.▇. ▇▇▇▇▇▇ Indemnitee’s status as a holder of record of the Customer’s Financial Assets. Nevertheless, the Customer will not be obligated to indemnify any ▇.▇. ▇▇▇▇▇▇ Indemnitee under the preceding sentence with respect to any Liability for which ▇.▇. ▇▇▇▇▇▇ is liable under Section 5.2(a) of this Agreement. (d) The Customer agrees that ▇.▇. ▇▇▇▇▇▇ provides no service in relation to, and therefore has no duty or responsibility to: (i) question Instructions or make any suggestions to the Customer or an Authorized Person regarding such Instructions; (ii) supervise or make recommendations with respect to investments or the retention of Financial Assets; (iii) advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any Security other than as provided in Section 2.7(b) of this Agreement; and (iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which ▇.▇. ▇▇▇▇▇▇ is instructed to deliver Financial Assets or cash. ▇.▇. ▇▇▇▇▇▇ is not responsible or liable in any way for the genuineness or validity of any Security or instrument received, delivered or held by ▇.▇. ▇▇▇▇▇▇ in physical form that appears to be genuine and valid.

WHEN ▇. ▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER 7.1 Standard of Care; Liability (a) ▇.▇. ▇▇▇▇▇▇ will use reasonable care in performing its obligations under this Agreement. , ▇.▇. ▇▇▇▇▇▇ will not be in violation of this Agreement responsible for any loss or damage suffered by the Customer or the Funds with respect to any matter as to which it ▇.▇. ▇▇▇▇▇▇ has satisfied its obligation of reasonable care, unless the same results from an act of negligence, fraud, or willful misconduct on the part of ▇.▇. Global Custody Agreement – New York – General – May 2012▇▇▇▇▇▇ or any ▇.▇. ▇▇▇▇▇▇ Indemnitee (the “Standard of Care”). (b) ▇.▇. ▇▇▇▇▇▇ will be liable for the Customer’s direct damages to the extent they result from ▇.▇. ▇▇▇▇▇▇’▇ fraud, negligence or willful misconduct failure to meet the Standard of Care in performing its duties as set out in this Agreement and to the extent provided in Section 5.2(a). Nevertheless, under no circumstances will ▇.▇. ▇▇▇▇▇▇ be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred NTAC:3NS-20 by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to the Accounts, ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇ role as custodian. (c) The Customer will indemnify the ▇.▇. ▇▇▇▇▇▇ Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of the ▇.▇. ▇▇▇▇▇▇ Indemnitees ▇▇▇▇▇▇▇▇▇▇▇ by any third party in connection with or arising out of (i) ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, provided the ▇.▇. ▇▇▇▇▇▇ Indemnitees have not acted in accordance with negligence or engaged in fraud or willful misconduct the Standard of Care in connection with the Liabilities in question question, or (ii) any ▇.▇. ▇▇▇▇▇▇ Indemnitee▇▇▇▇▇▇▇▇▇▇’s status as a holder of record of the Customer’s Financial Assets. Nevertheless, the Customer will not be obligated to indemnify any ▇.▇. ▇▇▇▇▇▇ Indemnitee ▇▇▇▇▇▇▇▇▇▇ under the preceding sentence with respect to any Liability liability for which ▇.▇. ▇▇▇▇▇▇ is liable under Section 5.2(a) of this Agreement. (d) The Customer agrees that ▇.▇. ▇▇▇▇▇▇ provides no service in relation to, and therefore has no duty or responsibility to: (i) question Instructions that ▇.▇. ▇▇▇▇▇▇ reasonably believes is given by an Authorized Person, or make any suggestions to the Customer or an Authorized Person regarding such Instructions; (ii) supervise or make recommendations with respect to investments or the retention of Financial Assets; (iii) advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any Security other than as provided in Section 2.7(b) of this Agreement; and (iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which ▇.▇. ▇▇▇▇▇▇ is instructed to deliver Financial Assets or cash. . (e) If Customer irrevocably acknowledges in writing that the ▇.▇. ▇▇▇▇▇▇ is Indemnitees are entitled to indemnification, the Customer shall have the option to defend the ▇.▇. ▇▇▇▇▇▇ Indemnitees against any claim which may be the subject of this indemnification using counsel reasonably acceptable to ▇.▇. ▇▇▇▇▇▇, and in the event that the Customer so elects, it will so notify ▇.▇. ▇▇▇▇▇▇, and from that time forward Customer shall take over complete defense of the claim subject to the following: (i) If the Customer shall fail promptly to defend, or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense, ▇.▇. ▇▇▇▇▇▇ shall have the right to undertake the defense or settlement thereof, at the Customer’s expense; (ii) The Customer shall not responsible have the right to defend the ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ with respect to any claim (A) that seeks, in whole or liable in part, injunctive or other equitable relief against ▇.▇. ▇▇▇▇▇▇ or (B) that in ▇.▇. ▇▇▇▇▇▇’▇ reasonable judgment would otherwise materially and adversely affect the business, financial condition or results of operations of ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇’▇ method of doing NTAC:3NS-20 business, or ▇.▇. ▇▇▇▇▇▇’▇ reputation, or (C) with respect to which ▇.▇. ▇▇▇▇▇▇, acting reasonably, believes the Customer may not have the financial wherewithal to satisfy its obligations; (iii) In the event that any way for such claim gives rise to a right of indemnity in favor of ▇.▇. ▇▇▇▇▇▇ from at least one customer in addition to the genuineness Customer, the Customer shall not have the right to defend, but in such case, the Customer shall only bear a proportionate share of the defense costs as reasonably determined by ▇.▇. ▇▇▇▇▇▇. (iv) In the event Customer elects to assume the control of the defense of the claim, the ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ may participate in such proceeding and retain additional counsel but shall bear all fees and expenses of such retention of such counsel, unless (A) Customer specifically authorized the retention of such counsel, or validity (B) counsel to ▇.▇. ▇▇▇▇▇▇ acting reasonably, advises that there are issues which raise conflicts of interest between Customer and the ▇.▇. ▇▇▇▇▇▇ Indemnitees; (v) In the event Customer assumes control of any Security proceeding, Customer shall keep ▇.▇. ▇▇▇▇▇▇ notified of the progress of such proceeding and, upon request, consult with ▇.▇. ▇▇▇▇▇▇ and counsel. Customer will, upon request by ▇.▇. ▇▇▇▇▇▇, either pay in the first instance or instrument receivedreimburse ▇.▇. ▇▇▇▇▇▇ for any expense subject to indemnity hereunder. Customer shall consult with ▇.▇. ▇▇▇▇▇▇ regarding any proposed settlement or compromise of any claim and not settle or compromise any claim without the prior written consent of ▇.▇. ▇▇▇▇▇▇ unless (A) such settlement or compromise involves no admission of guilt, delivered wrongdoing, or held misconduct by the ▇.▇. ▇▇▇▇▇▇ Indemnitees, (B) such settlement or compromise fully releases the ▇.▇. ▇▇▇▇▇▇ Indemnitees from all liabilities and obligations with respect to the claim, (C) such settlement or compromise does not impose any obligations or restrictions on the ▇.▇. ▇▇▇▇▇▇ Indemnitees other than obligations to pay money that are subject to indemnity under this Agreement and in ▇.▇. ▇▇▇▇▇▇’▇ reasonable judgment does not adversely affect ▇.▇. ▇▇▇▇▇▇, and (D) Customer shall have paid or made arrangements reasonably satisfactory to ▇.▇. ▇▇▇▇▇▇ for payment of amounts payable by ▇.▇. ▇▇▇▇▇▇ in physical form connection with such settlement. ▇.▇. ▇▇▇▇▇▇ shall in no case confess any claim or make any compromise in any case in which Customer will be asked to indemnify ▇.▇. ▇▇▇▇▇▇ except with the Customer’s prior written consent. (f) Under no circumstances will a Customer be liable for (i) any loss of profits (whether direct or indirect) or (ii) any indirect, incidental, consequential or special damages of any form, incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, resulting from Customer’s actions or omissions under this Agreement, provided that appears this Subsection 7.1(f) shall not apply to any Liability owing to a third party asserting a claim against ▇.▇. ▇▇▇▇▇▇ for which J.P. NTAC:3NS-20 ▇▇▇▇▇▇ is entitled to be genuine indemnified under this Agreement. (g) ▇.▇. ▇▇▇▇▇▇ shall indemnify the Customer Indemnitees against, and validhold them harmless from, any direct Liabilities which may be imposed on, incurred by, or asserted against any of the Customer Indemnitees by any third party in connection with or arising out of (i) ▇.▇. ▇▇▇▇▇▇’▇ failure to meet the Standard of Care in the performance of its obligations or duties under this Agreement; (ii) the failure of a Subcustodian to meet the standard of care set forth in Section 5.2(a)(i) of this Agreement, or (iii) the insolvency of any Affiliated Subcustodian as set forth in Section 5.2(a)(ii) of this Agreement. Nevertheless, ▇.▇. ▇▇▇▇▇▇ will not be obligated to indemnify any Customer Indemnitee under the preceding sentence to the extent such Liability is described in Section 7.2(b) and not caused by ▇.▇. ▇▇▇▇▇▇’▇ breach of the Standard of Care, or to the extent that the Customer Indemnitees have acted with negligence, fraud, or willful misconduct in connection with the Liabilities in question.