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2021-678-E-IT Dept-RecTrac-Parks & Rec software maintenance
DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 [Departmental Use Only] TITLE RecTrac Ann Maint FY 22 NORTH CAROLINA VERMON SYSTEMS SERVICES AGREEMENT ORANGE COUNTY This Services Agreement (hereinafter "Agreement"), made and entered into this 7th day of December, 2021, ("Effective Date") by and between Orange County, North Carolina a political subdivision of the State of North Carolina (hereinafter, the "County") and RecTrac, LLC d/b/a Vermont Systems, (hereinafter, the "Provider"). WITNESSETH: That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Agreement is for services to be rendered by Provider to County with respect to (insert type of project): recreation management software ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Provider is solely responsible for the professional Revised 06/21 dept req 11/12/21 1 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 quality, accuracy and timely completion and submission of all work related to the Basic Services. ii) Provider shall be responsible for all errors or omissions of its agents, contractors, employees, or assigns in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. vi) In determining the Basic Services to be provided, should any documents be referenced in this Agreement, the terms of this Agreement shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. vii) Should this Agreement involve project designs, the construction or creation of which is to be bid out or fulfilled by other contractors, and bidding or negotiation with contractors produce prices which, when added to the other elements of the approved total project cost, produce a cost that is in excess of the approved total project cost, the Provider shall participate with the County in negotiation and design adjustments to the extent such are necessary to obtain prices within the approved total project cost. All activity of the Provider with respect to these matters shall constitute Basic Services and shall be performed by the Provider without additional compensation. If negotiation and design adjustments fail to bring costs within the total project cost the County may reject all bids and Provider will redesign or reduce portions of the project in an effort to reduce the bid prices to within the total project cost and rebid the project. One such redesign is included within Basic Services. If this second letting for bids does not produce bids that are within the approved total project cost initially or after negotiations with the contractor the cost is not reduced to an amount within the total project cost, the Provider is not obligated to engage in further redesign. Revised 06/21 dept req 11/12/21 2 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 3. Basic Services a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows (fully describe services to be provided): Software maintenance and technical support for the application listed in the Scope of Work section (see Terms of Service Attachment A). 4. Duration of Services a. Term. The term of this Agreement shall be from 7/1/22 to 6/30/24. b. Scheduling of Services. i) The Provider shall schedule and perform its activities in a timely manner. ii) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Provider's Basic Services shall be 7/l/22. 5. Compensation a. Compensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services satisfactorily (as determined by the County) performed pursuant to this Agreement. The maximum amount payable for Basic Services shall not exceed twenty-eight-thousand-eight- hundred-thirty-three and 00/100 Dollars ($28,833.00 over 3 years) (See Attachment B). Payment for satisfactorily performed Basic Services shall become due and payable within thirty (30) days of Provider properly invoicing County. Payment shall be subject to provisions of Section 5(b). b. Disputes. In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Should Provider fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. c. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated (Jim Northrup) to act as the County's representative with respect to the Project who shall have the authority to render decisions within guidelines established by the County Manager or the County Board of Revised 06/21 dept req 11/12/21 3 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 Commissioners and who shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may be required by County's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departments/purchasing division/contracts.php). If County's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of N/A(if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 8. Indemnity a. Indemnity. To the extent authorized by North Carolina law the Provider agrees, without limitation, to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to the Project and arising from property damage or bodily injury including death to any person or persons caused in whole or in part by the negligence or misconduct of the Provider except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and for its convenience upon thirty(30) days' prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement based upon the County's material breach of this Agreement; provided, the County has not taken all reasonable actions to remedy the breach. The Provider shall give the County seven(7) days'prior written notice of its intent to terminate this Agreement for cause. Either party may terminate this Agreement upon notice to the other party that obligations pursuant to this Agreement are made impractical due to declarations of emergency by Orange County or by North Carolina due to events directly impacting Orange County. Both parties shall Revised 06/21 dept req 11/12/21 4 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 remain responsible for all payment and performance due up to the receipt of such notice, but shall have no further obligation or responsibility beyond that date provided the terminating party has taken all reasonable steps to complete the performance of its obligations. c. Compensation After Termination. i) In the event of termination, the Provider shall be paid that portion of the fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. Upon request of the County, the Provider shall submit to County all relevant documentation, including but not limited to, job cost records, to support its claims for final compensation. ii) Should this Agreement be terminated, the Provider shall deliver to the County within thirty (30) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim for damages by the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. e. Suspension. County may suspend the Basic Services and this Agreement at any time for County's convenience and without penalty to County upon three (3) days' notice to Provider. Upon any suspension by County, Provider shall discontinue work on the Basic Services and shall not resume the Basic Services until notified to proceed by County. 11. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. By executing this Agreement Provider affirms that Provider and any subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. c. Non-Discrimination. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state Revised 06/21 dept req 11/12/21 5 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 and federal non-discrimination laws, policies, rules, and regulations and the Orange County Non-Discrimination Policy and Orange County Living Wage Policy(each policy is incorporated herein by reference and may be viewed at http://www.oran eg counMc. o�partments/purchasing division/contracts.php.) Any violation of the Orange County Non-Discrimination Policy is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. d. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. g. Ownership of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. h. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable or not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability or non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement. In the event of a change in the County's statutory authority, mandate or mandated functions, by state or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider Revised 06/21 dept req 11/12/21 6 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 of such limitation or change in County's legal authority. i. Signatures. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. j. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Orange County Provider's Name Attention:Jim Northrup Vermont Systems Attn: Legal P.O. Box 8181 12 Market PI Hillsborough,NC 27278 Essex Junction, VT 05452 [SIGNATURE PAGE TO FOLLOW] Revised 06/21 dept req 11/12/21 7 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and seal, all as of the day and year first above written. ORANGE COUNTY: PROVIDER: DocuSigned by: DocuSigned by: By. bouLA,ic, t�mv�At1' /2021 By. Sao{{ S}v'b" 12/7/2021 Bonnie Hammersley, County Manager Scott Strong, President Printed Name and Title Revised 06/21 dept req 11/12/21 8 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 ORANGE COUNTY—DEPARTMENT USE ONLY Party/Vendor Name: RecTrac, LLC d/b/a Vermont Systems Party/Vendor Contact Person: Scott Strong Contact Phone: 802-879-6993 Party/Vendor Address: 12 Market Place City Essex Junction State: VT Zip: 05452 Department: DEAPR Amount: $28,833.00 (over 3 years) Purpose: Parks & Rec software maintenance Budget Code(s): 10315020-625010 Vendor#54244 (N/A if new vendor) Vendor is a BOCC consultant? Yes ❑No® Contract Type: (Check one)New ® Renewal ❑ Amendment ❑ Effective Date 07 December 2021 Approved by Board Yes❑No® Agenda Date: ---For Section XIV. c. contracts only, Approved by Board in Current FY Budget Yes❑No❑ This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to eXvcfto@ivf4hv agreement: Department Director's Signature SfA"t Date: 12/7/2021 Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: N/A Information Technologies (Applicable only to hardware/software purchases or related services)This agreement has been reviewed and is approved as to information technology content and 4A JIB' �lWlVTU,VtA� Office of the Chief Information Officer Date:12/9/2021 Risk Management This agreement is approved for sufficiency of ins ataoda__Ws"",specifications,and requirements: guso. Cbvu,u�b 12/9/2021 Office of the Risk Management Officer 6F9178800498... Date: Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: DocuSigned by: Office of the Chief Financial Officer /� 0.1�" 12/10/2021 ` '�O Date: 7D4E5181ACC1409... Legal Services This agreement is approved as to legal form a ^ sti®may: ����J�LS Office of the County Attorney Date: 12/10/2021 Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board Date: Revised 06/21 dept req 11/12/21 9 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 i m e nt A r-%L.L.U�.i VERMONT SYSTEMS TERMS OF SERVICE 1. DEFINITIONS. Capitalized terms used but not with the disclosing party's prior written otherwise defined in these Terms of Service will authorization; (f) has been disclosed by court have the meaning ascribed to such terms in the order or as otherwise required by law, provided Services Agreement or other applicable Addenda. that the party required to disclose the information provides prompt advance notice to enable the "Addendum"or"Addenda" means a document other party to seek a protective order or otherwise added to the Agreement containing new or prevent such disclosure;or(g) is subject to NCGS supplemental terms. Chapter 132 Public Records law. "Agreement" means the Orange County, INC "Customer" is a VS customer.The Customer is the Services Agreement(No RFP/RFQ)and any individual, business entity, non-profit, military attachments,schedules or exhibits referenced branch, or municipality contracting with us to therein,which could include the Order Schedule, receive Services as more specifically identified in Privacy Policy,Vermont Systems Terms of Service, the Services Agreement. Customer may also be Service Level Agreement,Statement of Work,Sub- referred to in the Agreement as"you," "your"or Merchant Agreement,or any later-signed "Licensee." Addenda. "Customer Data" is the content, information or "Billing Period" means the period of time covered data which you,your End Users and/or your by a single recurring dues fee for Services. Unless Patrons enter into the Software associated with otherwise noted, a Billing Period will be billed in our Services. Customer Data may include Patron advance and will cover a period of one(1)year. Data,among other types of data. "Cardholder Data" is a subset of Customer Data "Effective Date" shall have the meaning as set and generally includes a Patron's name, billing forth in the Services Agreement. address,credit card number,expiration date and CVV code. "End Users" are your authorized users of the Software associated with our Services.Those "Confidential Information" means any and all licenses associated with a Customer's concurrent information disclosed by either party to the other End Users will be listed in the Order Schedule. which is marked "confidential"or"proprietary"or which the recipient knows or has reason to know is "Fees" mean any and all fees associated with the regarded by the disclosing party as such, including use of our Services, including(but not limited to) information disclosed orally. "Confidential Software Fees, Hosting Fees, Support Fees,any Information" does not include any information that fees associated with our Payment Services,and/or the receiving party can demonstrate by its written any fees associated with Professional Services,as records: (a)was known to it prior to its disclosure well as any other fees or charges permitted by the hereunder by the disclosing party; (b) is or Agreement. Fees may be recurring, non-recurring, becomes known through no wrongful act of the or one-time,as more specifically described in the receiving party; (c) has been rightfully received Order Schedule. from a third party authorized to make such a disclosure; (d) is independently developed by the "Hardware" means the computer equipment, receiving party; (e) has been approved for release point-of-sale terminals,or other technical 1 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS hardware distributed by us or by a reseller on our requires that you enter into a separate Sub- behalf. Hardware may contain firmware or Merchant Agreement with us. software. "Professional Services"are any professional "Hosting Fees" mean the fees associated with the services provided outside of our initial hosting of Customer Data on our VS-controlled unconfigured install of the Software associated servers and systems. with our Services. Professional services may include consulting,custom development work, "Initial Term" is the initial term for Services,as implementation,supplemental or onsite training, described in the Services Agreement. remote training,or projects which generally fall "Intellectual Property Rights" means all patents, outside the scope of the Agreement. Unless rights to inventions, utility models,copyright and otherwise agreed, Professional Services will be related rights,trademarks,service marks,trade, documented under a separate Statement of Work business and domain names, rights in trade dress and signed by the Parties. or get-up, rights in goodwill or to sue for passing "Services" mean any and all of those products off, unfair competition rights, rights in designs, and/or services offered by us to you under the rights in computer software, database rights, moral Agreement.Services may include products or rights, rights in confidential information (including services related to software, hosting, hardware, know-how and trade secrets) and any other implementation,support,training and/or intellectual property rights, in each case whether payments.A specific itemization of Services can be registered or unregistered and including all found in the Order Schedule. applications for and renewals or extensions of such rights,and all similar or equivalent rights or forms "Services Agreement" means the contract of protection in any part of the world. between you and us for Services.The Orange County, NC Services Agreement(No RFP/RFQ), "Order Schedule" means the schedule in the together with any attachments,schedules or Agreement which itemizes and describes the exhibits referenced therein, is broadly referred to Services we are willing to provide to you and any as the as between you and us. specific fees you are agreeing to pay us for such Services. "Software" means our proprietary technology software and any and all associated modules, "Patron(s)" mean(s)the individuals who purchase websites,third party integrations and/or mobile your products and/or services and who otherwise applications(if applicable). interact with the Software associated with our Services. Patrons are your customers,clients or "Software Fees" mean those fees associated with members. your access to and use of our Software or any component thereof.We may charge Software Fees "Patron Data" means information about Patrons monthly,quarterly or annually,as more specifically entered into the Software by you,your End Users described in the Order Schedule. or your Patrons. Patron Data may include(but is not limited to) personally identifiable information "Sub-Merchant Agreement" means our Sub- and/or Cardholder Data. Merchant Application and Agreement and Payment Service Terms and Conditions,which govern the "Payment Services" means the payment and terms and conditions under which we are willing to billing-related services that we may provide to you provide our Payment Services. under the Agreement. Payment Services may be described in the Order Schedule or in a separate "Support Fees" mean those fees associated with Addendum,and your receipt of Payment Services our Support Desk,which enables customer support 2 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS through live channels like phone and chat.We may any right of ownership in or to our Services, charge Support Fees monthly, quarterly or including the Software,or any of our Intellectual annually,as more specifically described in the Property Rights. Upon termination of the Order Schedule. Agreement for any reason,any rights granted by us to you will automatically and without notice "Renewal Term" means the period which terminate.The method and means of providing the immediately follows the expiration of the Initial Services shall be under our exclusive control, Term,as described in the Services Agreement. management and supervision,although we will try "Team" includes VS's employees,officers, to give your specific requests due consideration. directors,owners,attorneys, affiliates or Any rights not specifically granted under the representatives. Agreement are expressly reserved. "Term" means the term for Services and includes 3.2 Grant of Rights by Customer. Upon the both the Initial Term and any Renewal Terms,as Effective Date,and subject to our remaining in applicable. compliance with the Agreement,you grant to us a limited term,worldwide, non-exclusive license to "VS" means RecTrac, LLC d/b/a Vermont Systems access and use your Customer Data (including any and its subsidiaries,successors and assigns.VS's Patron Data, as applicable)to deliver, monitor and business address is 12 Market Place, Essex maintain the Services in accordance with the Junction,VT 05452.VS may also be referred to in Agreement.Any rights not specifically granted the Agreement as"Licensor," "we," "our,"or"us." under the Agreement are expressly reserved. 2.ACCEPTANCE.You accept the terms of the 3.3 Excess Use.We will provide you with the Agreement when you (a)click-sign your acceptance number of authorized End User licenses as set to an online version of the Services Agreement; (b) forth in the Order Schedule to access and use the sign a hardcopy of the Services Agreement;and/or Software.You shall have access to functionalities in (c)access the Services or otherwise accept the the Software that can generate reports indicating benefits of Services.You expressly acknowledge the number of authorized End Users accessing the that the person accepting the Agreement on your Software at any given time. In the event that the behalf has the proper legal authority to bind you as number of concurrent End Users exceeds the the Customer. number of allocated licenses described in the 3.GRANT OF RIGHTS. Order Schedule("Excess Use"),we will notify you by email about such Excess Use and, if you do not 3.1 Grant of Rights by VS. Upon the Effective Date, reduce the Excess Use within 30 days of such and subject to your timely payment of Fees and notice,you will be required to pay for any Excess remaining in compliance with the Agreement,we Use with additional licenses,which shall be grant to you a limited term,worldwide, non- described in a new invoice and which will exclusive, non-transferrable, non-assignable license automatically update the Order Schedule. to access and use our Services, including the Software,during the Term solely for the lawful 3.4 Prohibited Use.You shall not use our Services operation of your business.The licensed rights in violation of the law,whether local,state or federal (including but not limited to the CAN-SPAM described herein shall be limited to End Users authorized by you to access and use the Software, Act,the Telephone Consumer Protection Act,the and your Patrons who have a legitimate right to Do-Not-Call Implementation Act,the Americans access and use your products and/or services.The with Disabilities Act,or any consumer protection licensed rights conferred herein do not constitute a statute);to intentionally bypass a security sale and do not convey to you or any third party mechanism in the System(s);to reverse-engineer 3 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS the System(s),or any component thereof, Agreement for convenience(meaning without regardless of the reason why; in a way that cause)at any time during the Term with a 30-day adversely impacts the availability, reliability or written notice. stability of the System(s),or any component thereof;to intentionally transmit material using 4.4 Termination Notice. For termination to be the System(s)which contains viruses,Trojan considered effective,you must send your horses,worms or some other harmful computer termination notice in writing to Vermont Systems, Inc. at 12 Market Place, Essex Junction,VT 05452. program;to send unsolicited advertising, marketing or promotional materials,whether by S. FEES; PAYMENT TERMS. email or text,without the recipient's legally-valid consent;to commit fraud;to transmit material that 5.1 Payment of Fees.You agree to pay us all Fees infringes on the intellectual property right of permitted by the Agreement. Fees for specific others;to transmit material that is harassing, Services are described in the Order Schedule and discriminatory,defamatory,vulgar, pornographic, may be set up to bill quarterly or annually,as we or harmful to others; or in violation of this and you may decide.All Fees are based on Services Agreement.Violation of this Prohibited Use policy provided, not on your actual usage. Except as may result in immediate suspension or permitted by the Agreement,all Fees paid are non- discontinuation of Services,or legal action which refundable. could result in civil damages or criminal 5.2 Fee Commencement. Payment for the punishment. software subscription and hosting is invoiced and 4.TERM;TERMINATION. due in full when the initial out of the box, base software URL is emailed to you.This typically 4.1 Term.You will be obligated to the Term as occurs less than 30 days after the project"kickoff' described in the Services Agreement, including any date. auto-renewal provisions. 5.3 Due Date; Late Fees; Interest. Payment is due 4.2 Termination for Cause. Prior to expiration of within 30 days from the date you receive our the Initial Term, either you or we may terminate invoice(the"Due Date"). the Agreement for cause(a) upon 30 days written notice to the other party of a material breach if 5.4 Error Reporting. Please report any errors that such breach remains uncured at the expiration of you see on an invoice immediately. such period; (b) if the other party becomes the 5.5 COLT Increase.After the Initial Term, all Fees subject of a petition in bankruptcy or any other shall be subject to a cost of living and technology proceeding relating to insolvency, receivership, ("COLT")enhancement increase not to exceed five liquidation or assignment for the benefit of percent(5%)of then current Fees.VS reserves the creditors; or(c) if the other party dissolves or right to apply the COLT enhancement to any Fees ceases to do business in the ordinary course. If our at the start of each Renewal Term, in its sole and termination of the Agreement is for cause,then absolute discretion. you shall remain liable for any Fees covering the remainder of the Initial Term,or a Renewal Term, 5.6 Breach for Non-Payment of Fees. Payment not as applicable, after the effective date of such made within 30 days of the Due Date will result in termination.Termination for cause will not an automatic breach of the Agreement and start preclude the non-breaching party from exercising the clock on a 20-day period in which to cure. If any other rights or remedies permitted by law. payment is still not received by the 51st day after the scheduled Due Date,we reserve the right to 4.3 Termination for Convenience(Without Cause). suspend Services until all outstanding Fees are Both parties shall have a right to terminate the 4 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS paid. Continued non-payment of Fees more than the original Terms of Service or insist on the 60 days after the Due Date will result in a default changed Terms of Service and permit you to under the Agreement. In the event of default,all terminate the Agreement without cause and payments otherwise due to us under the without penalty. Agreement will be accelerated and will be considered due and payable by you immediately, 6.2 Changing the Order Schedule.You may add or remove Services during the Term at any time as of the date of default. provided that we agree to such changes in writing. 5.6.Taxes. If you are a tax-exempt organization, then this provision does not apply.We have no 6.3 Other Changes to the Agreement. Except as obligation to pay your taxes under any otherwise described in this Section, no circumstances.Taxes may include value-added tax modification of the Agreement will be binding (VAT),a goods and service tax(GST),a sales tax,or unless in writing and manually signed by an authorized representative of the parties. use or withholding taxes assessed by a local,state, federal, provincial or foreign government entity (collectively, "Taxes"). Please make sure that you have taken appropriate steps to pay your Taxes. 7.CUSTOMER DATA. We are obligated to comply with all valid tax liens 7.1 Customer Data Generally.You represent and or levies associated with your business. If we must warrant that you own or have appropriate rights to pay Taxes on your behalf,you agree to indemnify all of your Customer Data.You shall have sole us for any such payments within 30 days from your responsibility for the accuracy,quality, integrity, receipt of a special tax-related invoice. legality, reliability, appropriateness,and 6. MODIFICATIONS. intellectual property ownership or rights to use of all Customer Data (including Patron Data,as 6.1 Changing the Terms of Service.We reserve the applicable). Except as specifically provided for in right to modify these Terms of Service by posting a the Agreement,we shall not be responsible or revised Terms of Service on our website and liable for the deletion,correction, destruction, sending you notice that they have changed to your damage, loss or failure to store any of your email address on recordand be required to,ask Customer Data. you to review and to explicitly agree to or reject a revised version of the Terms of Service. In such 7.2 Hosting Obligations. Hosting of Customer Data cases, modifications will become effective at the on VS-controlled servers and systems does not time you sign your consent to the modified Terms come standard with all Agreements; Customers of Service. In cases where we do not ask for your must specifically contract for hosting services and explicit consent to a modified version of the Terms pay all associated Hosting Fees. IF VS CUSTOMER of Service, but otherwise provide notice as set DOES NOT SELECT VS's HOSTING SERVICES,AND forth above,the modified version of the Terms of INSTEAD CHOOSES TO ASSUME THE DUTY OF Service will become effective 30 days after we have HOSTING ITS OWN CUSTOMER DATA ON ITS OWN posted the modified Terms of Service and provided SYSTEMS AND SERVICES,THEN AS SUCH,NO you with notification.Your continued use of LIABILITY SHALL ATTACH WHERE WE HAVE NO Services following that period constitutes your DUTY WITHIN THIS CONTRACT OR AT COMMON acceptance of the Terms of Service as modified. If LAW.WE MAKE NO WARRANTIESASSOCIATED you do not agree with the changes to the modified WITH SUCH CUSTOMER DATA OR CUSTOMER'S Terms of Service,you are required to notify us of OWN HOSTING ACTIVITIES,INCLUDING(BUT NOT such within the same 30-day period and we will LIMITED TO) INCIDENTS RESULTING IN data have the sole right to decide whether to revert to breach,MISAPPROPRIATION OF CUSTOMER DATA,VIOLATIONS OF PRIVACY RIGHTS,AND/OR 5 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS ANY OTHER SITUATION RESULTING IN DAMAGES file and other data,as specified in the Agreement OR MONETARY LOSS ARISING OUT OF OR and in such detail as shall properly substantiate RELATING TO THE HOSTING OR STORAGE OF claims for payment,for a minimum of one(1)year CUSTOMER DATA. If Customer chooses VS for beginning on the first day after the Agreement is hosting services,and we actually store Customer properly terminated,or for such longer period as Data on a VS-controlled system or service,then, in may be necessary for the resolution of any dispute, addition to those terms and conditions described negotiation,audit,or other inquiry involving the in our Privacy Policy, and provided Customer Agreement. remains current in its payment of Hosting Fees and otherwise compliant with the Agreement,then we $•SPLASH PAGE.We assume no duty to maintain make the following limited representations and your WebTrac splash page and make no warranties warranties with respect to our hosting services:we regarding compliance with Section 508 of the will,at all times during the Term of the Agreement: Rehabilitation Act of 1973,as amended (29 U.S.C. § (a) maintain a comprehensive data security 794d),and its implementing regulations set forth program which includes reasonable and at Title 36,Code of Federal Regulations, part 1194, appropriate technical,organizational and security the Americans with Disabilities Act,or any other measures against the destruction, loss, applicable federal or state laws or regulations relating to accessibility for persons with disabilities. unauthorized access or alteration of Customer Data (including Patron Data,as applicable)which As such, no liability shall attach where we have no measures will be no less rigorous than the duty within this contract or at common law. accepted security standards for similarly situated 9. HARDWARE.We shall have no obligation to companies in the industry;and (b) provide our provide you with the Hardware necessary to access hosting services in a good and workmanlike our Services or use our Software.Any Hardware manner;and (c)offer hosting services which,to the used must comply with our minimum system best of our knowledge,comply with applicable requirements. If we choose to provide you with local,state or federal laws.The limited Hardware, a description of such Hardware and representations and warranties described herein pricing will be described in your Order Schedule. In shall be subject to any other limitations of liability the absence of specified pricing,we may provide described by the Agreement. you with Hardware at our then-current market 7.3 Return of Customer Data. If we are providing rates. Full payment for Hardware and any related you with hosting services,then you shall have third-party software is due following delivery.The access to your Customer Data (including Patron verification process must be completed so that all Data,as applicable)for the duration of the Term, payments can be made within 30 days of delivery. subject to the terms and conditions of the Any VS-supplied Hardware will include warranties Agreement. Upon termination of the Agreement, from the manufacturer or distributor,as or where you properly cancel hosting services applicable,for a specific period.We offer no during the Term,your access to any VS-hosted warranties on Hardware. Customer Data will end immediately on the same 10. INSTALLATION;TRAINING.We will provide an day in which you cancel or terminate the initial unconfigured install of the Software as part Agreement; however, per the requirements of of the Fees you pay for Services.Subsequent NCGS Chapter 132 Public Records law, you will installations or software configuration will be have continued access to your Customer Data for subject to additional charges on a "time and the limited purpose of transferring your Customer materials" basis at our standard rates. Based upon Data to your own systems or servers. . on a mutually agreed implementation plan,we will Notwithstanding the foregoing,we reserve the provide training and setup services at our standard right to maintain a copy of any other record, book, 6 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS rates(plus expenses-if any incurred). real-time chat support is available five(5)days a Implementation and Training may be performed week, Monday through Friday,8 am ET to 5 pm ET. remotely or on-site. We also offer access to online Premium Support includes online portal case training materials, including: user reference creation, email assistance and call-back services, manuals, installation planning guides, report and Customer ability to choose remote-in live listings, "FasTrac" how to videos,online help,and a support services via Zoom or Microsoft Teams. sample training database with tutorials.You may request follow-up or additional trainings at our 11.3 Customer Support Not Provided. Regardless then-current hourly rates, and subject to of whether you are a Standard Support or Premium scheduling availability.Additional training will Support Customer,we do not provide the following occur online(remote). customer support services as part of the Agreement: (a)actual usage of standard hour pager support, 8 pm ET to 8 am ET, Monday through Friday,and Saturday,Sunday and holidays, 11.CUSTOMER SUPPORT. 24 hours, 7 days a week; (b)travel and out-of- 11.1 Standard Support.All Customers receiving pocket expenses for installation and on-site our Services will receive"Standard Support" training services; (c)telephone support related to services,which includes online support and access computer hardware,operating systems, to a VS support documentation library. Online networking, reinstallation and configuration of support includes access to an online knowledge application software (including VIC), point-of-sale database,support videos accessible through the VS hardware,and access control hardware; (d) website,e-learning content and the ability to telephone support and/or training as a substitute participate at no additional cost in periodic live for on-site training or classroom training; (e)VS webinars offered from time to time by VS.The VS application software WAN access configuration; (f) support documentation library is accessible customized discovery,custom programming, through the VS website and includes access to user development, and maintenance; (g) interfaces to reference manuals, installation planning guides, export or import data from or to other application report listings,online help and a sample training software databases;and (h)extended dedicated database with tutorials. Customers can print any support to implement or change certain functions, number of copies needed to train staff and manage such as switching from cash to accrual accounting their business operation. Customers can access or customizing WebTrac splash page; (i) performing standard support channels online,24 hours a day, periodic VS software updates if database is on- 7 days a week.VS's standard support services are premises; (j) purchase installation or configuration included with Customer's payment of Software of SSL certificates for on-premises configurations; Fees. and (k)data entry or database management.VS may provide some of these Services under a 11.2 Premium Support(Support Desk).Customers separate engagement,the terms of which should choosing our"Premium Support"service will be agreed upon and documented in a signed receive access to our award-winning"Support Statement of Work. Desk,"which, in addition to Standard Support, makes certain channels available to Customers like 11.4. Remote Access Authorization.We will phone and chat support with a live VS support provide you with on-going support or updates for agent. Customers receiving Premium Support shall the proper functioning of our Services, including be responsible for paying Support Fees as the Software,which we can only provide or make described in the Order Schedule.The Support Desk available through remote access to your is open for call-in phone support five(5)days a technology systems. By using our Services,or week, Monday through Friday,8 am ET to 8 pm ET; accessing our Software,you expressly authorize us 7 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS to access your technology systems remotely for the 14.CUSTOM DEVELOPMENT.While we welcome limited purpose of providing you with any support any suggestions or comments you might have or updates relevant to our Services.You shall be about how we can improve our products and solely liable for the cost, interoperability, proper services,we do not custom develop our Services functioning,and security of any remote access (including the Software)to suit the business needs facilities or methods used by you,and we shall not of any particular client.We will consider all be deemed to be in violation of our obligations to suggested improvements to the Services, and, as you, nor in breach of the Agreement,as the result we determine,will incorporate any approved items of our inability to remotely access your technology to our development roadmap. If there is a feature systems. Our right of remote access as described or functionality that you would like to see added to herein shall be deemed a continuing right until our Services, and you would like the project such time as the Agreement terminates,for any completed on a certain timeline,you can make a reason.We agree to use commercially reasonable custom development request and, based on our efforts to comply with any of your published staffing and other considerations,we will scope the security-related protocols when remotely accessing project and provide you with a written quote which your technology systems. you can accept or reject.Custom development work will be considered a separate engagement for 12. PAYMENT SERVICES.To be eligible for Payment Professional Services and will be billed outside of Services,you must complete our Sub-Merchant the Agreement. Custom development work shall Application and submit it to VS Company not be considered work-for-hire.We will own and underwriting for approval. Once accepted,your control any product outcome of the engagement Sub-Merchant Application will convert to a Sub- and we reserve the right to incorporate any new Merchant Agreement, inclusive of the Sub- feature or functionality into our larger product or Merchant Application and Agreement(SMAA)and service offerings. our Payment Service Terms and Conditions,which shall be considered part of the Agreement. 15.OWNERSHIP RIGHTS. 13. PROFESSIONAL SERVICES.We reserve the right 15.1 What Belongs to VS.We reserve all title and to provide you with an estimate of fees for interest to our Intellectual Property Rights.We Professional Services based on the approximate alone own our Intellectual Property Rights, in number of hours we think will be reasonably addition to any suggestions, ideas,enhancement required to complete an engagement, multiplied requests,feedback, recommendations,or other by a fixed hourly rate. If we underestimate the fees information provided by you or any other party for Professional Services based on work actually relating to our Services. In addition,we retain all performed,we will obtain pre-approval prior to rights,title and interest in and to our Software and you being responsible for any cost overruns at the any splash page designs that we may create and/or same hourly rate.We will invoice you separately maintain on your behalf and license to you.The for cost overruns.To help you track and plan for Vermont Systems",VS" and VS Payments'" names any cost overruns,we will track our actual and logos are registered trademarks of Vermont Professional Service hours and, upon written Systems and no right or license is granted to use request, provide you with a weekly time report. them without our express written permission. Any specific details of an engagement for Professional Services should be described in a 15.2 What Belongs to Customer.With the Statement of Work and signed by the parties.Any exception of Patron Data (which remains the fees for Professional Services will be considered property of individual Patrons),you reserve all part of the Fees owed under the Agreement. rights,title and interest to your Customer Data. You own all rights,title and interest to Customer 8 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS trademarks,service marks and other intellectual the federal Family Educational Rights and Privacy property. Act("FERPA"),or similar state laws.We will not disclose,copy,or modify any Educational 16.CONFIDENTIALITY.Aparty(the"Receiving Information without your prior written consent,or Party")shall not disclose the disclosing party's(the unless otherwise required by law.We will notify "Disclosing Party")Confidential Information to any you if we become aware of a possible unauthorized person or entity,except to the Receiving Party's disclosure or use of Educational Information. employees who have a need to know the Confidential Information for the Receiving Party to 18. LIMITED WARRANTIES.We represent and exercise its rights or perform its obligations under warrant that(a)we own the appropriate rights to the Agreement. Notwithstanding the foregoing, license and/or sublicense our Services(including each party may disclose Confidential Information the Software); (b)the Services(including the to the limited extent required (a) in order to Software)will conform with any then-available comply with the order of a court or other published specifications; (c)to the best of our governmental body,or as otherwise necessary to knowledge,our Software is free of any viruses, comply with applicable law, provided that the Trojan horses, malware,spyware, ransomware or party making the disclosure pursuant to the order other harmful code;and (d)that there have been shall first have given written notice to the other no violations of copyrights or patent rights in party and made a reasonable effort to obtain a connection with the Services(including the protective order; (b)to establish a party's rights Software)offered.We do not warrant that the under this Agreement, including to make required Services(including the Software)will be entirely court filings;or(c) in order to comply with NCGS free from defect or error. EXCEPT AS SPECIFICALLY Chapter 132 Public Records law, provided that the STATED HEREIN,THE SERVICES(INCLUDING THE party making the disclosure pursuant to the law SOFTWARE)ARE BEING PROVIDED ON AN "AS IS" shall first make reasonable efforts to have given BASIS,WITHOUT WARRANTY OF ANY KIND. EACH written notice to the other party to enable the PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER other party reasonable time to obtain a protective WARRANTIES,WHETHER EXPRESS OR IMPLIED. No order. Each Party's obligations of non-disclosure advice or information,whether written or oral, with regard to Confidential Information are obtained from us,or any member of our Team,will effective as of the Effective Date and will expire create any warranty not expressly made. If you are one year after the termination of the Agreement; a California resident,you waive California Civil provided, however,with respect to any Code§ 1542,which says: "A general release does Confidential Information that constitutes a trade not extend to claims which the creditor does not secret(as determined under applicable law),such know or suspect to exist in his favor at the time of obligations of non-disclosure will survive the executing the release,which if known by him must termination or expiration of the Agreement for as have materially affected his settlement with the long as such Confidential Information remains debtor." subject to trade secret protection under applicable 19. LIMITATIONS OF LIABILITY.The following law. limitations of liability are applicable to the extent 17. PROTECTION OF EDUCATIONAL allowable under North Carolina Law: INFORMATION.We understand and acknowledge that in the performance of our Services,we may 19.1 EXCLUSIVE REMEDY.TO THE EXTENT have access to private and confidential information ALLOWABLE UNDER NORTH CAROLINA LAW, YOUR EXCLUSIVE REMEDY FOR ANY FAILURE OF regarding students, parents,guardians,faculty, OUR OBLIGATIONS UNDER THE AGREEMENT donors, employees,staff,alumni (collectively, "Educational Information")that may be covered by SHALL BE YOUR RIGHT TO TERMINATE THE 9 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS AGREEMENT FOR CAUSE AND WITHOUT PENALTY, NOT ENLARGE ANY DAMAGES CAP DESCRIBED AND ANY CREDITS WHICH MAY BE DUE UNDER HEREIN. AN APPLICABLE SERVICE LEVEL AGREEMENT(IF A 20. INDEMNIFICATION.To the extent allowable SERVICE LEVEL AGREEMENT IS OFFERED AS PART OF THE AGREEMENT). under law including prohibitions by Article V, Section 4(3)of the North Carolina Constitution and 19.2 EXCLUDED DAMAGES.TO THE EXTENT applicable case law precedent,you shall indemnify ALLOWABLE UNDER NORTH CAROLINA LAW,IN and defend us(including any member of our Team) NO EVENT SHALL WE BE LIABLE OR RESPONSIBLE and hold us harmless against any claim,suit, TO YOU FOR ANY TYPE OF INCIDENTAL,PUNITIVE, demand or proceeding("Claim")that arises from INDIRECT OR CONSEQUENTIAL DAMAGES, your actions,your use or misuse,of the Services INCLUDING BUT NOT LIMITED TO,LOST REVENUE, (including, but not limited to,the Software);your LOST PROFITS,REPLACEMENT GOODS,LOSS OF breach of the Agreement or these Terms of TECHNOLOGY,RIGHTS OR SERVICES,LOSS OF Service;or your infringement on someone else's DATA,OR INTERRUPTION OR LOSS OF USE OF rights, including but not limited to,third party SERVICES OR EQUIPMENT,EVEN IF ADVISED OF intellectual property rights.Our indemnity rights THE POSSIBILITY OF SUCH DAMAGES,WHETHER shall include all costs associated with the Claim or ARISING UNDER A THEORY OF CONTRACT,TORT Claims, including attorneys'fees,court costs, (INCLUDING NEGLIGENCE),STRICT LIABILITY OR dispute resolution costs,and/or fees associated OTHERWISE. with collection. 19.3 DAMAGES CAP.TO THE EXTENT ALLOWABLE 21. DISPUTE RESOLUTION. Many concerns can be UNDER NORTH CAROLINA LAW, IN NO EVENT resolved by calling us at(877)883-8757. If a SHALL OUR LIABILITY TO YOU OR ANY THIRD dispute cannot be resolved informally,this Dispute PARTY IN ANY CIRCUMSTANCES EXCEED THE Resolution provision explains how claims(whether AMOUNT OF FEES YOU ACTUALLY PAID TO US FOR by you against us,or by us against you)will be SERVICES IN THE TWELVE(12) MONTH PERIOD resolved. DIRECTLY PRIOR TO THE ACTION GIVING RISE TO ALLEGED LIABILITY. 21.1 Definition."Claim" means any current or future claim,dispute or controversy relating in any 19.4 TIME LIMITATION.TO THE EXTENT way to our Agreement.Claim includes(a) initial ALLOWABLE UNDER NORTH CAROLINA LAW,YOU claims,counterclaims,cross-claims and third-party FURTHER AGREE THAT ANY CLAIM WHICH YOU claims; (b)claims based upon contract,tort,fraud, MAY HAVE AGAINST US MUST BE FILED WITHIN statute, regulation,common law and equity;and TWO(2)YEARS AFTER SUCH CLAIM AROSE, (c)claims by or against any third party using or OTHERWISE THE CLAIM SHALL BE PERMANENTLY providing any product,service or benefit in BARRED. connection with our Agreement or the Software. 19.5 MATERIALITY.TO THE EXTENT ALLOWABLE 21.2 Claim Notice. Before beginning a lawsuit or UNDER NORTH CAROLINA LAW,THE LIMITATIONS mediation,you and we agree to send a notice(a IN THIS SECTION ARE A MATERIAL BASIS OF THE "Claim Notice")to each party against whom a BARGAIN,AND THE TERMS OF THE AGREEMENT Claim is asserted.The Claim Notice will give you WOULD BE DIFFERENT WITHOUT SUCH and us a chance to resolve our dispute informally LIMITATIONS.THE LIMITATIONS IN THIS SECTION or in mediation.The Claim Notice must describe ARE INTENDED TO APPLY WITHOUT REGARD TO the Claim and state the specific relief demanded. WHETHER OTHER PROVISIONS OF THE Notice to you may be sent to your current mailing AGREEMENT HAVE BEEN BREACHED OR HAVE address or email address on file.You must provide PROVEN INEFFECTIVE. MULTIPLE CLAIMS WILL your name,address and phone number in your 10 File:VS Terms of Service 04DEC2020-V01 ©RecTrac,LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS Claim Notice.Your Claim Notice must be sent to Vermont Systems, Inc.,ATTN: Legal, 12 Market Place, Essex Junction,VT 05452. 21.3 Mediation. Before beginning nonbinding mediation,you or we must first send a Claim Notice.Within 30 days after sending or receiving a Claim Notice,you or we may submit the Claim for mediation. Mediation fees will be split equally,and the location for mediation shall be mutually decided between you and us.All mediation-related communications are confidential, inadmissible in court and not subject to discovery.All applicable statutes of limitations will be tolled until termination of the mediation. Either you or we may terminate the mediation at any time. 21.4 Arbitration.The parties may elect to resolve any Claim by individual binding arbitration only upon mutual agreement. Claims will be decided by one neutral arbitrator who will be a retired judicial officer or an attorney with at least 10 years of experience; however, if we both agree,we may select another person with different qualifications. If arbitration is chosen by mutual agreement of the parties, neither you nor we will have the right to litigate that claim in court or have a jury trial on that claim. Further,you and we will not have the right to participate in a representative capacity or as a member of any class pertaining to that claim. The arbitrator's decisions are enforceable as any court order and are subject to very limited review by a court.The arbitrator's decision will be final and binding. Before beginning arbitration,you or we must first send a Claim Notice.The parties must choose upon mutual agreement to arbitrate either before JAMS or AAA.This arbitration provision is governed by the FAA.You will be responsible for paying your share of any arbitration fees(including filing,administrative, hearing or other fees).We will be responsible for our arbitration fees. 11 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS 22. NOTICES;GOVERNING LAW;JURISDICTION. 23.1 Privacy Rights.You are required to comply with our Privacy Policy,which may be revised from 22.1 General.Who you are contracting with under time to time upon notice and affirmative this Agreement,who you should direct notice to acceptance by County,and which are expressly under this Agreement,what law will apply in any incorporated into the Agreement. lawsuit arising out of this Agreement, and which court can adjudicate any such lawsuit to this 23.2 Minimum System Requirements/ Agreement are as follows: Interoperability. It is your responsibility to ensure your computer systems, internet connections, IT Who you are RecTrac, LLC d/b/a Vermont infrastructure, peripherals,systems,servers, contracting Systems mobile devices and/or workstations comply with with: the minimum system requirements necessary to Notices to be 12 Market Place receive our Services.We shall not be responsible Essex Junction,VT 05452 for any internet speed or connectivity issues at sent to: legal@vermontsystems.com your location,or other problems related to your technology equipment, including third party Governing law North Carolina internet service or your IT infrastructure.You shall is: be required to comply with our technical Courts having State courts of North specifications. exclusive Carolina,or a U.S. District 23.3 Reference.You agree that,within 30 days of jurisdiction are: Court for North Carolina the Effective Date,we may issue a new business press release about our business association and a brief description of your business on our website. 22.2 Manner of Giving Notice. Except as otherwise Any reference shall be removed upon termination specified in this Agreement,all notices, or conclusion of this agreement. permissions and approvals hereunder shall be in writing and shall be deemed to have been given 23.4 Independent Contractor Relationship.Our upon (a) personal delivery; (b)the second business legal relationship to you is that of an independent day after mailing; (c)the second business day after contractor.The Agreement does not form a sending by confirmed facsimile;or(d)the first partnership,franchise,joint venture, employment, business day after sending by email (provided agency and/or fiduciary relationship between you email shall not be sufficient for notices of and us. termination or an indemnifiable claim). Notices to 23.5 Non-Discrimination Endorsement.We shall you shall be addressed to the designated contact not discriminate in our employment practices and person identified in the Services Agreement at the will render all Services under the Agreement email address or physical address listed. without regard to race, color, religion,sex,sexual 22.3 Agreement to Governing Law and orientation, age, national origin,veteran's status, Jurisdiction. Each party agrees to the applicable political affiliation, or disabilities.Specifically,we governing law above without regard to choice or will abide by the requirements of Title VII of the conflicts of law rules, and to the exclusive Civil Rights Act of 1964,as amended by the Equal jurisdiction of the applicable courts above. Employment Opportunity Act of 1972,the Vietnam Era Veteran's Readjustment Assistance Act of 1974; 22.4 Waiver of Jury Trial. Reserved. Title IX of the Education Amendments of 1972,the Fair Housing Act of 1968,as amended,the Orange County Non-Discrimination Policy,and the Orange 23.GENERAL PROVISIONS. County Living Wage Policy. 12 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS 23.6 Export Controls.The Services and any the parties,their respective successors and derivatives thereof may be subject to export laws permitted assigns.Should you object to the and regulations of the United States and other assignment of this Agreement in connection with a jurisdictions. Each party represents that it is not merger, acquisition,corporate reorganization,or named on the United States'government denied- sale of all or substantially all of our assets,you shall party list.Additionally,you shall not permit End have the right to terminate this Agreement for Users to access or use the Subscription Services convenience. while located in a United States embargoed country(currently Cuba, Iran, North Korea,Sudan, 23.11 Force Majeure. Neither party shall be in Syria or Crimea),or in violation of any United default under any provision of the Agreement or States' export law or regulation. be liable for any delay,failure of performance or interruption in Services(including the Software) 23.7 Anti-Bribery.You agree that neither your resulting,directly or indirectly,from causes beyond employees,agents or representatives have our reasonable control, including but not limited to received or been offered any illegal or improper any of the following:earthquake, lightning or other bribe, kickback,gift,or thing of value from us,or acts of God;fire or explosion; electrical faults; any member of our Team, in connection with the vandalism;cable cut;water; hurricanes;fire; Agreement. If you learn of any violation of the flooding;severe weather conditions; actions of above restrictions,you agree to promptly notify us. governmental or military authorities; national emergency; insurrection, riots or war;terrorism or 23.8 Legal Advice.All Professional Services and civil disturbance;strikes, lock-outs,work stoppages other information provided to you in the normal or other labor difficulties;supplier failure; course of our business relationship should be shortage;or telecommunication or other Internet considered for informational purposes only and is provider failure. not to be taken as legal advice.You are advised to speak with your own independent counsel about 23.12 Survivability. Even if you terminate the all matters of a legal nature. Agreement with us,the following sections of the Agreement will still apply:Terms of Service Section 23.9 Waiver;Cumulative Remedies. No failure or 7,2(Hosting Obligations);Section 16 delay by either party in exercising any rights under (Confidentiality);Section 17(Protection of the Agreement shall constitute a waiver of that Educational Information);Section 18(Limited right.Other than as expressly stated herein,the Warranties);Section 19 (Limitations of Liability); remedies provided in the Agreement are in Section 20(Indemnification);Section 21 (Dispute addition to,and not exclusive, of any other Resolution);Section 22 (Notice;Governing Law; remedies of a party at law or in equity. Jurisdiction);Section 23.8(Legal Advice);Section 23.10 Assignment. Neither party may assign any of 23.11(Force Majeure)and Section 23.16(Entire its rights or obligations hereunder,whether by Agreement; Priority of Documents). operation of law or otherwise,without the prior 23.13 Severability.The invalidity or written consent of the other party(not to be unenforceability of any provision of the Agreement unreasonably withheld). Notwithstanding the will not affect the validity or enforceability of the foregoing,we may assign this Agreement in its other provisions of the Agreement,which entirety without your consent,to our affiliates or in provisions will remain in full force and effect. If any connection with a merger,acquisition,corporate provision of this Agreement shall be deemed reorganization,or sale of all or substantially all of unenforceable by reason of its extent,duration, our assets not involving one of your direct scope or otherwise,then the parties contemplate competitors.Subject to the foregoing,the that the court making such determination will alter Agreement shall bind and inure to the benefit of 13 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 VERMONT SYSTEMS such provisions so that it is enforced and will your agreements with VS may be presented, enforce it in its altered form for all purposes delivered,stored, retrieved,and transmitted contemplated by the Agreement. electronically.You must keep us informed of any change in your electronic or mailing address or 23.14 Headings.The bolded headings contained in other contact information.Your electronic the Agreement are for convenience of reference signature, including,without limitation clicking only,shall not be deemed to be a part of the "Agree and Continue"or"I Accept" or an action of Agreement and shall not be referred to in similar meaning or significance,shall be the legal connection with the construction or interpretation equivalent of your manual signature.You may of the Agreement. withdraw your consent to doing business 23.15 Construction. For purposes of the electronically at any time by contacting us and Agreement,wherever the context requires,the withdrawing your consent. However,any singular shall include the plural,and vice versa;the communications or transactions between us before masculine gender shall include the feminine and your withdrawal of such consent,will be valid and neuter gender,and vice versa;and "and"shall binding. include"or," and vice versa.Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of the Agreement. 23.16 Entire Agreement; Priority of Documents. The Agreement(including these Terms of Service) and any additional terms or Addenda,as applicable, make up the entire Agreement and supersede all prior agreements, representations, and understandings.All additional terms and/or Addenda will be considered incorporated into the Agreement when you agree to them. 23.17 Electronic Signature.The Agreement may be executed in any number of counterparts, each of which when executed shall be deemed an original, but such counterparts together shall constitute one and the same instrument. Delivery of executed counterparts by email, .PDF,or other electronic delivery method shall be effective as delivery. Electronic signatures, including any click-sign process,will be deemed as original. 23.18 Consent to Do Business Electronically. By signing the Services Agreement,you consent to do business electronically,which means that you agree that all VS agreements and policies, including amendments thereto and documents referenced therein,as well as any notices, instructions,or any other communications regarding transactions and 14 File:VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision:9/29/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 HudUllment B Bill Orange County IT Ship To: Orange County IT To: 131 West Margaret Lane 131 West Margaret Lane Suite 300 Suite 300 Hillsborough,NC 27278 Hillsborough,NC 27278 3% 1.000 1.000 V-RT-MU-AR-M Activity Reg-M/U Annual MA. 550.00 550.00 566.50 1.000 1.000 V-RT-MU-FR-M Facility Res-M/U Annual MA 550.00 550.00 566.50 1.000 1.000 V-RT-MU-PM-M Pass Mgmt Photo-M/U Annual Maintenance 550.00 550.00 (NO Print Pass/ID Card) 566.50 1.000 1.000 V-RT-MU-PMI-EX Pass Mgmt Ext Integration-Fobs/Existing ID 180.00 180.00 Cards Maintenance 185.40 1.000 1.000 V-RT-MU-PS-M POS Inventory-/Inventory/Tickets M/U Annual 550.00 550.00 MA 566.50 1.000 1.000 V-RT-MU-SA-M RT SystemAdmin.M/U Annual Maintenance 400.00 400.00 412.00 18.000 18.000 V-RT-MU-AU-M RecTrac Add'I User Annual MA Over Two 60.00 1080.00 1,112.40 1.000 1.000 T-PG-M Progress Annual Maintenance 772.00 772.00 795.16 1.000 1.000 V-RT-IN-GL-M General Ledger Interface maintenance 300.00 300.00 309.00 1.000 1.000 V-WT-MU-IS-M WebTrac Internet Software,Incl RT Integration 1090.00 1090.00 s/w 16-39 Users,Annual MA,25 Aq 1,122.70 1.000 1.000 V-WT-MU-AR-M WebTrac Activity Reg Annual Maintenance, 16- 290.00 290.00 39 Usrs. 298.70 1.000 1.000 V-WT-MU-FR-M WebTrac Facility Reserv, 16-39 Users,Annual 290.00 290.00 Maint. 298.70 1.000 1.000 V-WT-MU-MWT-MMobile Web Trac Workgrp 490.00 490.00 Maintenance 504.70 1.000 1.000 V-WT-MU-AU-M WebTrac Workgroup 250.00 250.00 RecTrac[WebTrac Agents Annual Maintenance. 257.50 1.000 1.000 T-PG-MU-WB-M Progress WebSpeed Trans Svr,Annual Maint. 482.00 482.00 496.46 1.000 1.000 V-PT-IN-ERI-M Credit Card Interface 600.00 600.00 Annual maintenance 618.00 1.000 1.000 T-KP-COI Certificate of Insurance 50.00 50.00 51.50 Add:Virtual Symposium 600.00 Discount -18.63 Total Inv $ 8,455.37 $ 9,328.22 Without 2021 Discount 8474.00 3.23% DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 DATE(MM/DDIYYYY) ACOR" CERTIFICATE OF LIABILITY INSURANCE �� 11/17/2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Susan D.Masters,CIC Arthur J. Gallagher Risk Management Services, Inc. PHONE FAX 201 E.4th Street, Ste 625 AIC No Ext: 513-977-3139 A/c No), Cincinnati OH 45202 ADDRESS; susan_masters-oh@ajg.com INSURER(S)AFFORDING COVERAGE NAIC# INSURERA:Continental Insurance Company 35289 INSURED CLUBLLC-01 INSURER B:Continental Casualty Company 20443 Clubessential Holdings, LLC 4600 McAuley Place Ste 350 INSURER C:Valley Forge Insurance Company 20508 Cincinnati OH 45242-4765 INSURER D:Ascot Specialty Insurance Company INSURER E: Crum&Forster Specialty Insurance Co 44520 INSURER F: COVERAGES CERTIFICATE NUMBER:1743106405 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR INSD WVD POLICY NUMBER MM/DDIYYYY MM/DDIYYYY C X COMMERCIAL GENERAL LIABILITY N N 6079684571 11/15/2021 11/15/2022 EACH OCCURRENCE $1,000,000 F—V� DAMAGE TO CLAIMS-MADE OCCUR PREMISES ('a a RENTED ) $100,000 MED EXP(Any one person) $5,000 PERSONAL&ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 X POLICY jE LOC PRODUCTS-COMP/OP AGG $2,000,000 OTHER: $ C AUTOMOBILE LIABILITY N N 6079684568 11/15/2021 11/15/2022 COEaMBINED accidentSINGLELIMIT $1,000,000 X ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY Per accident X Hired PhyDam Hired PhyDam $75,000 A X UMBRELLA LIAB X OCCUR N 6079684604 11/15/2021 11/15/2022 EACH OCCURRENCE $2,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $2,000,000 DED X RETENTION$In nnn $ A WORKERS COMPENSATION Y 6079684599 11/15/2021 11/15/2022 X PER OTH- A AND EMPLOYERS'LIABILITY Y/N WC679684585 11/15/2021 11/15/2022 STATUTE ER ANYPROPRIETOR/PARTNER/EXECUTIVE ❑ E.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 E Prof/Cyber-CM TCM101288 3/23/2021 3/23/2022 Ea Claim/Agg $5,000,000 B Crime-3rdParty 652175238 11/15/2021 11/15/2022 Ea Claim $1,000,000 D Excess Prof/Cyber-CM EOXS2110000601-01 3/23/2021 3/23/2022 Ea Claim $5,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Complete Named Insured:Clubessential Holdings LLC;CE Management Holdings, LLC;Clubessential,LLC;ClubReady,LLC; LEGP II Blocker(CR), Inc; ClubReady Canada Software ULC;GYM HQ, LLC; FitBPO Solutions, LLC; PrestoSports, LLC; RecTrac, LLC dba Vermont Systems; Immersion Media, Inc. dba ScoreShots;(eff 1/29/21)iKizmet, Inc;(eff 2/19/21)Golf Compete, Inc dba foreUP;(eff 5/25/21): Exerp Buy Co.;Exerp America Inc.;Exerp Holdings ApS; Exerp ApS; Exerp Asia-Pacific Pty Ltd OH Employers Defense Liability(Stop Gap): Policy#6079684571 11/15/2021-11/15/2022$1,000,000/$1,000,000/$1,000,000 CGL:CNA74872XX(01/15)CNA Technology Broadening Endorsement provides: See Attached... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Orange County Attn: Risk Management ACCORDANCE WITH THE POLICY PROVISIONS. 200 South Cameron Street PO Box 8181 AUTHORIZED REPRESENTATIVE Hillsborough NC 27278 USA � %C-6 ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 AGENCY CUSTOMER ID: CLUBLLC-01 LOC#: AC"J?o ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Arthur J.Gallagher Risk Management Services, Inc. Clubessential Holdings, LLC 4600 McAuley Place Ste 350 POLICY NUMBER Cincinnati OH 45242-4765 CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE -Additional Insured by Contract,Agreement or Permit when required in a written contract with you; -Waiver of Subrogation when required in a written contract with you PKG:CNA62665XX(10/15)CNA Paramount Technology Broadening Endorsement provides: -Employee Dishonesty including ERISA$50,000 Ea Occ Limit/$2,500 Deductible BA:CA2048(10/13)Blanket Additional Insured when required in a written contract with you BA:CA0444(10/13)Blanket Waiver of Subrogation when required in a written contract with you WC:WC000313(04/84)Blanket Waiver of Subrogation when required in a written contract with you where allowed by State law. WC:WC420304B(06/14)Texas Blanket Waiver of Subrogation when required in a written contract with you. Umbrella is follow form regarding underlying: CGL BA WC Prof/Cyber Retention: $50,000;Retro Active 3/23/11 Prof/Cyber:TCM-POL-001 (01/19)C&F TCM Technology E&O,Cyber and Multimedia Liability Insurance Policy coverage form: -pg 6 Automatic Additional Insured status when required by written contract with you; -pg 15 Automatic Waiver of Subrogation where required by written contract with you. Third Party Crime Deductible: $5,000 Excess Prof/Cyber: Underlying Limit$5,000,000;Underlying Retention$50,000; Retro Active 3/23/2020 Workers'compensation waiver of subrogation applies in favor of certificate holder. ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement It is understood and agreed that this endorsement amends the COMMERCIAL GENERAL LIABILITY COVERAGE PART as follows. if any other endorsement attached to this policy amends any provision also amended by this endorsement, then that other endorsement controls with respect to such provision, and the changes made by this endorsement with respect to such provision do not apply. TABLE OF CONTENTS 1. Additional Insureds 2. Additional Insured-Primary And Non-Contributory To Additional Insured's Insurance 3. Bodily Injury—Expanded Definitlon 4. Broad Knowledge of Occurrence/Notice of Occurrence S. Broad Named Insured 6. Estates,Legal Representatives and Spouses 7. Expected Or Intended Injury—Exception for Reasonable Force 8. In Rem Actions 9. Incidental Health Care Malpractice Coverage 10. Joint Ventures/Partnership/Limited Llability Companies 11. Legal Liability—Damage To Premises 12. Medical Payments 13. Non-owned Aircraft Coverage 0 14. Non-owned Watercraft 15. Personal And Advertising Injury—Discrimination or Humiliation 0 16. Personal And Advertising Injury-Limited Contractual Liability t2 17. Property Damage-Elevators 18. Supplementary Payments 19. Property Damage—Patterns,Molds and Dies m 0 20. Unintentional Failure To Disclose Hazards N g 21. Waiver of Subrogatlon—Blanket 0 CNA74872XX(1-15) Policy No: 6079684571. Page 1 of 14 Endorsement No: 6 Nat 'l Fire Ins Co of Hartford Effective Date: 11/15/2021 Insured Name: (valley Forge Insurance Company Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office,Inc.,with Its permisslon. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement 1. ADDITIONAL INSUREDS a. WHO IS AN INSURED is amended to include as an Insured any person or organization described in paragraphs A.through K. below whom a Named Insured is required to add as an additional insured on this Coverage Part under a written contract or written agreement, provided such contract or agreement: (1) is currently in effect or becomes effective during the term of this Coverage Part; and (2) was executed prior to: (a) the bodily injury or property damage; or (b) the offense that caused the personal and advertising injury, for which such additional insured seeks coverage. b. However, subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional insured with: (1) a higher limit of insurance than required by such contract or agreement; or (2) coverage broader than required by such contract or agreement, and in no event broader than that described by the applicable paragraph A.through K.below. Any coverage granted by this endorsement shall apply only to the extent permissible by law. A. Controlling Interest Any person or organization with a controlling interest in a Named Insured, but only with respect to such person or organization's liability for bodily injury,property damage or personal and advertising injury arising out of; 1. such person or organization's financial control of a Named Insured;or 2. premises such person or organization owns, maintains or controls while a Named Insured leases or occupies such premises; provided that the coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. B. Co-owner of Insured Premises A co-owner of a premises co-owned by a Named Insured and covered under this insurance but only with respect to such co-owner's liability for bodily Injury, property damage or personal and advertising injury as co-owner of such premises. C. Grantor of Franchise Any person or organization that has granted a franchise to a Named Insured, but only with respect to such person or organization's liability for bodily injury, property damage or personal and advertising injury as grantor of a franchise to the Named Insured. D. Lessor of Equipment Any person or organization from whom a Named Insured leases equipment, but only with respect to liability for bodily injury, property damage or personal and advertising Injury caused, in whole or in part, by the Named Insured's maintenance, operation or use of such equipment, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. CNA74872XX(1-15) Policy No: 6079684571 Paqe 2 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved, Includes copyrighted material of Insurance Services Office,Inc.,with Its permission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement E. Lessor of Land Any person or organization from whom a Named Insured leases land but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of the ownership, maintenance or use of such land, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising Injury takes place prior to the termination of such lease. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. F. Lessor of Premises An owner or lessor of premises leased to the Named Insured, or such owner or lessor's real estate manager, but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of the ownership, maintenance or use of such part of the premises leased to the Named Insured, and provided that the occurrence giving rise to such bodily Injury or property damage, or the offense giving rise to such personal and advertising injury, takes place prior to the termination of such lease. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. G. Mortgagee,Assignee or Receiver A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee or receiver's liability for bodily injury, property damage or personal and advertising injury arising out of the Named Insured's ownership, maintenance, or use of a premises by a Named Insured. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. H. State or Governmental Agency or Subdivision-or Political Subdivisions—Permlits 0 g A state or governmental agency or subdivision or political subdivision that has issued a permit or authorization but only with respect to such state or governmental agency or subdivision or political subdivision's liability for bodily Injury,property damage or personal and advertising injury arising out of: 1. the following hazards in connection with premises a Named Insured owns, rents, or controls and to which this insurance applies: 9 a. the existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults,street banners,or decorations and similar exposures; or m 0 b. the construction, erection, or removal of elevators; or N c. the ownership, maintenance or use of any elevators covered by this insurance; or 2. the permitted or authorized operations performed by a Named Insured or on a Named Insured's behalf. The coverage granted by this paragraph does not apply to: a. Bodily injury,property damage or personal and advertising injury arising out of operations performed for the state or governmental agency or subdivision or political subdivision; or b. Bodily injury or property damage included within the products-completed operations hazard. With respect to this provision's requirement that additional insured status must be requested under a written contract or agreement, the Insurer will treat as a written contract any governmental permit that requires the Named Insured to add the governmental entity as an additional insured. CNA74872XX(1-15) Policy No: 6079684571 Paoe 3 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 insureQ Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office,Inc.,with Its permisslon. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement I. Trade Show Event Lessor 1. With respect to a Named Insured's participation in a trade show event as an exhibitor, presenter or displayer, any person or organization whom the Named Insured is required to include as an additional insured, but only with respect to such person or organization's liability for bodily injury, property damage or personal and advertising Injury caused by: a. the Named Insured's acts or omissions; or b. the acts or omissions of those acting on the Named Insured's behalf, in the performance of the Named Insured's ongoing operations at the trade show event premises during the trade show event. 2. The coverage granted by this paragraph does not apply to bodily injury or property damage included within the products-completed operations hazard, J. Vendor Any person or organization but only with respect to such person or organization's liability for bodily injury or property damage arising out of your products which are distributed or sold in the regular course of such person or organization's business, provided that: 1. The coverage granted by this paragraph does not apply to; a. bodily injury or property damage for which such person or organization is obligated to pay damages by reason of the assumption of liability in a contract or agreement unless such liability exists in the absence of the contract or agreement; b. any express warranty unauthorized by the Named Insured; c. any physical or chemical change in any product made intentionally by such person or organization; d. repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; e. any failure to make any inspections, adjustments, tests or servicing that such person or organization has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. demonstration, installation, servicing or repair operations, except such operations performed at such person or organization's premises in connection with the sale of a product; g. products which, after distribution or sale by the Named Insured, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for such person or organization; or h. bodily injury or property damage arising out of the sole negligence of such person or organization for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) the exceptions contained in Subparagraphs d.or f.above; or (2) such inspections, adjustments, tests or servicing as such person or organization has agreed with the Named Insured to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This Paragraph J.does not apply to any insured person or organization, from whom the Named Insured has acquired such products, nor to any ingredient, part or container, entering into, accompanying or containing such products. CNA74872XX(1-15) Pollcy No: 6079684571 Paoe 4 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rlghts Reserved. Includes copyrighted material of Insurance Services Office,Inc.,with Its permission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement 3. This Paragraph J.also does not apply: a. to any vendor specifically scheduled as an additional insured by endorsement to this Coverage Part; b. to any of your products for which coverage is excluded by endorsement to this Coverage Part; nor c. if bodily injury or property damage included within the products-completed operations hazard is excluded by endorsement to this Coverage Part. K. Other Person Or Organization/Your Work Any person or organization who is not an additional insured under Paragraphs A. through J. above. Such additional insured is an Insured solely for bodily Injury, property damage or personal and advertising injury for which such additional insured is liable because of the Named Insured's acts or omissions. The coverage granted by this paragraph does not apply to any person or organization: i. who is specifically scheduled as an additional insured on another endorsement to this Coverage Part; nor 2. for bodily injury or property damage included within the products-completed operations hazard except to the extent all of the following apply: a. this Coverage Part provides such coverage; b. the written contract or agreement described in the opening paragraph of this ADDITIONAL INSUREDS Provision requires the Named Insured to provide the additional insured such coverage; and c. the bodily Injury or property damage results from your work that is the subject of the written contract or agreement, and such work has not been excluded by endorsement to this Coverage Part. 2. ADDITIONAL INSURED-PRIMARY AND NON-CONTRIBUTORY TO ADDITIONAL INSURED'S INSURANCE 0 g A. The Other Insurance Condition in the COMMERCIAL GENERAL LIABILITY CONDITIONS Section is amended to add the following paragraph: If the Named Insured has agreed in writing in a contract or agreement that this insurance is primary and non- contributory relative to an additional insured's own insurance, then this insurance is primary, and the Insurer will not seek contribution from that other insurance. For the purpose of this Provision 2., the additional insured's own insurance means insurance on which the additional insured is a named insured. s B. With respect to persons or organizations that qualify as additional insureds pursuant to paragraph 1.K. of this endorsement, the following sentence is added to the paragraph above: 0 Otherwise, and notwithstanding anything to the contrary elsewhere in this Condition, the insurance provided to such person or organization is excess of any other insurance available to such person or organization. 3. BODILY INJURY—EXPANDED DEFINITION Under DEFINITIONS,the definition of bodily injury is deleted and replaced by the following: Bodily injury means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury sustained by that person at any time which results as a consequence of the physical ^^� injury,sickness or disease. 4. BROAD KNOWLEDGE OF OCCURRENCE/NOTICE OF OCCURRENCE Under CONDITIONS,the condition entitled Duties in The Event of Occurrence,Offense,Claim or Suit Condition is amended to add the following provisions: A. BROAD KNOWLEDGE OF OCCURRENCE CNA74872XX(1-15) Pollcy No: 6079684571 Pale 5 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Data:, 11/15/2021 Insurecl Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted material or Insurance Services Office,Inc.,with Its permisslon. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement The Named Insured must give the Insurer or the Insurer's authorized representative notice of an occurrence, offense or claim only when the occurrence, offense or claim is known to a natural person Named Insured, to a partner,executive officer, manager or member of a Named Insured, or to an employee designated by any of the above to give such notice. B. NOTICE OF OCCURRENCE The Named Insured's rights under this Coverage Part will not be prejudiced if the Named Insured fails to give the Insurer notice of an occurrence, offense or claim and that failure is solely due to the Named Insured's reasonable belief that the bodily injury or property damage is not covered under this Coverage Part, However, the Named Insured shall give written notice of such occurrence, offense or claim to the Insurer as soon as the Named Insured is aware that this insurance may apply to such occurrence, offense or claim. 5. BROAD NAMED INSURED WHO IS AN INSURED is amended to delete its Paragraph 3.in its entirety and replace it with the following: 3. Pursuant to the limitations described in Paragraph 4. below, any organization in which a Named Insured has management control: a. on the effective date of this Coverage Part;or b. by reason of a Named Insured creating or acquiring the organization during the policy period, qualifies as a Named Insured, provided that there is no other similar liability insurance, whether primary, contributory, excess, contingent or otherwise,which provides coverage to such organization, or which would have provided coverage but for the exhaustion of its limit, and without regard to whether its coverage is broader or narrower than that provided by this insurance. But this BROAD NAMED INSURED provision does not apply to: (a) any partnership or joint venture; or (b) any organization for which coverage is excluded by another endorsement attached to this Coverage Part. For the purpose of this provision, and of this endorsement's JOINT VENTURES / PARTNERSHIP I LIMITED LIABILITY COMPANIES provision, management control means: A. owning interests representing more than 50% of the voting, appointment or designation power for the selection of a majority of the Board of Directors of a corporation, or the members of the management board of a limited liability company; or B. having the right, pursuant to a written trust agreement, to protect, control the use of, encumber or transfer or sell property held by a trust. 4. With respect to organizations which qualify as Named insureds by virtue of Paragraph 3. above, this insurance does not apply to: a. bodily injury or property damage that first occurred prior to the date of management control, or that first occurs after management control ceases; nor b. personal or advertising injury caused by an offense that first occurred prior to the date of management control or that first occurs after management control ceases, S. The insurance provided by this Coverage Part applies to Named Insureds when trading under their own names or under such other trading names or doing-business-as names (dba) as any Named Insured should choose to employ. CNA74872XX(1-15) Policy No: G079684571 Paqe 6 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Insures!Name: CLUBESSENTTAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services office,Inc.,Wth its perrnission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CN►A CNA PARAMOUNT Technology General Liability Extension Endorsement 6. ESTATES,LEGAL REPRESENTATIVES,AND SPOUSES The estates, heirs, legal representatives and spouses of any natural person Insured shall also be insured under this policy; provided, however, coverage is afforded to such estates, heirs, legal representatives, and spouses only for claims arising solely out of their capacity or status as such and, in the case of a spouse, where such claim seeks damages from marital community property, jointly held property or property transferred from such natural person Insured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal representative, or spouse outside the scope of such persons capacity or status as such, provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are Insureds with respect to such spouses'acts, errors or omissions in the conduct of the Named Insured's business. 7. EXPECTED OR INTENDED INJURY—EXCEPTION FOR REASONABLE FORCE Under COVERAGES, Coverage A -- Bodily Injury And Property Damage Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Expected or Intended.lnjury and replace it with the following: This insurance does not apply to: Expected or Intended Injury Bodily Injury or property damage expected or intended from the standpoint of the Insured. This exclusion does not apply to bodily injury or property damage resulting from the use of reasonable force to protect persons or property. 8. IN REM ACTIONS A quasi in rem action against any vessel owned or operated by or for the Named Insured, or chartered by or for the Named Insured, will be treated in the same manner as though the action were in personam against the Named Insured, 0 9. INCIDENTAL HEALTH CARE MALPRACTICE COVERAGE o , Solely with respect to bodily injury that arises out of a health care Incident: A. Under COVERAGES, Coverage A—Bodily Injury And(Property Damage Liability,the Insuring Agreement is amended to replace Paragraphs 1.b.(1)and 1.b.(2)with the following: b. This insurance applies to bodily injury provided that the professional health care services are incidental to 0 the Named Insured's primary business purpose, and only if: 0 (1) such bodily injury is caused by an occurrence that takes place in the coverage territory. (2) the bodily injury first occurs during the policy period. All bodily injury arising from an occurrence will be deemed to have occurred at the time of the first act, error, or omission that is part of the occurrence; and B. Under COVERAGES, Coverage A — Bodily Injury And Property Damage Liability, the paragraph entitled Exclusions is amended to: 1. add the following to the Employers Liability exclusion: This exclusion applies only it the bodily Injury arising from a health care incident is covered by other liability insurance available to the Insured (or which would have been available but for exhaustion of its limits). li. delete the exclusion entitled Contractual Liability and replace it with the following: This insurance does not apply to: CNA74872XX(1-15) Policy No: 6079684571 Page 7 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Inslurea Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved, Includes copyrighted material of Insurance Services Office,Inc.,with Its permission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement Contractual Liability the Insured's actual or alleged liability under any oral or written contract or agreement, including but not limited to express warranties or guarantees. iii. add the following additional exclusions. This insurance does not apply to: Discrimination any actual or alleged discrimination, humiliation or harassment, that includes but shall not be limited to claims based on an individual's race, creed, color, age, gender, national origin, religion, disability, marital status or sexual orientation. Dishonesty or Crime Any actual or alleged dishonest, criminal or malicious act, error or omission. Medicare/Madicaid Fraud any actual or alleged violation of law with respect to Medicare, Medicaid, Tricare or any similar federal, state or local governmental program. Services Excluded by Endorsement Any health care incident for which coverage is excluded by endorsement. C. DEFINITIONS is amended to: 1. add the following definitions: Health care incident means an act, error or omission by the Named Insured's employees or volunteer workers in the rendering of: a. professional health care services on behalf of the Named Insured or b. Goad Samaritan services rendered in an emergency and for which no payment is demanded or received. Professional health care services means any health care services or the related furnishing of food, beverages, medical supplies or appliances by the following providers in their capacity as such but solely to the extent they are duly licensed as required: a. Physician; b. Nurse; c. Nurse practitioner; d. Emergency medical technician; e. Paramedic; f. Dentist; g. Physical therapist; h. Psychologist; 1. Speech therapist; J. Other allied health professional;or Professional health care services does not include any services rendered in connection with human clinical trials or product testing. CNA74872XX(1-15) Policy No: 6079684571 Page 8 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 insures Name: CLUEESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Ofllco,Inc.,with Its permisston. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement ii. delete the definition of occurrence and replace it with the following: Occurrence means a health care incident. All acts, errors or omissions that are logically connected by any common fact, circumstance,situation, transaction, event, advice or decision will be considered to constitute a single occurrence; iii. amend the definition of Insured to: a. add the following: • the Named Insured's employees are Insureds with respect to: (1) bodily injury to a co-employee while in the course of the co-employee's employment by the Named Insured or while performing duties related to the conduct of the Named Insured's business;and (2) bodily Injury to a volunteer worker while performing duties related to the conduct of the Named Insured's business; when such bodily injury arises out of a health care incident. • the Named Insured's volunteer workers are Insureds with respect to: (1) bodily injury to a co-volunteer worker while performing duties related to the conduct of the Named Insured's business; and (2) bodily injury to an employee while in the course of the employee's employment by the Named Insured or while performing duties related to the conduct of the Named Insured's business; when such bodily injury arises out of a health care incident. a b. delete Subparagraphs(a), (b),(c)and(d)of Paragraph 2.a.(1)of WHO IS AN INSURED. c. add the following: Insured does not include any physician while acting in his or her capacity as such. D. The Other Insurance condition is amended to delete Paragraph b.(1) in its entirety and replace it with the following: M Other Insurance 0 0 b. Excess Insurance (1) To the extent this insurance applies, it is excess over any other insurance, self insurance or risk transfer g instrument, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by the Named Insured to be excess of this coverage. 10. JOINT VENTURES 1 PARTNERSHIP/LIMITED LIABILITY COMPANIES WHO IS AN INSURED is amended to delete its last paragraph and replace it with the following: No person or organization is an Insured with respect to: • the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations; nor • the conduct of a current or past limited liability company in which a Named Insured's interest does/did not rise to the level of management control: except that if the Named Insured was a joint venturer, partner, or member of such a limited liability company, and such joint venture, partnership or limited liability company terminated prior to or during the policy period, then such CNA74872XX(1-15) Policy No: 6079684571 Page 9 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance services office,Inc.,with its permission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement Named Insured is an Insured with respect to its interest in such joint venture, partnership or.limited liability company but only to the extent that: a. any offense giving rise to personal and advertising injury occurred prior to such termination date, and the personal and advertising Injury arising out of such offense,first occurred after such termination date; b. the bodily injury or property damage first occurred after such termination date; and c. there is no other valid and collectible insurance purchased specifically to insure the partnership, joint venture or limited liability company. 11. LEGAL LIABILITY—DAMAGE TO PREMISES A. Under COVERAGES, Coverage A -- Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete the first paragraph immediately following subparagraph (6) of the Damage to Property exclusion and replace it with the following: Paragraphs (1), (3) and (4) of this exclusion do not apply to property damage (other than damage by fire, lightning, explosion, smoke or leakage from automatic fire protective systems) to premises rented to the Named Insured or temporarily occupied by the Named Insured with the permission of the owner, nor to the contents of premises rented to the Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in LIMITS OF INSURANCE. B. Under COVERAGES, Coverage A — Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete its last paragraph and replace it with the following: Exclusions c. through n. do not apply to damage by fire, lightning, explosion, smoke or leakage from automatic fire protective systems to premises while rented to a Named Insured or temporarily occupied by a Named Insured with permission of the owner, nor to damage to the contents of premises rented to a Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in the LIMITS OF INSURANCE Section. C. LIMITS OF INSURANCE is amended to delete Paragraph 6.(the Damage To Premises Rented To You Limit) and replace it with the following: 6. Subject to Paragraph 5. above, (the Each Occurrence Limit), the Damage To Premises Rented To You Limit is the most the Insurer will pay under COVERAGE A for damages because of property damage to: a. any one premises while rented to a Named Insured or temporarily occupied by a Named Insured with the permission of the owner; and b. contents of such premises if the premises is rented to the Named Insured for a period of 7 or fewer consecutive days. The Damage To Premises Rented To You Limit is$500,000. unless a higher Damage to Premises Rented to You Limit is shown in the Declarations. D. The Other Insurance Condition is amended to delete Paragraph b.(1)(aXi1Q, and replace it with the following: (i) That is property insurance for premises rented to a Named Insured,for premises temporarily occupied by the Named Insured with the permission of the owner; or for personal property of others in the Named Insured's care, custody or control; E. This Provision 11. does not apply if liability for damage to premises rented to a Named Insured is excluded by another endorsement attached to this Coverage Part. CNA74872XX(1-15) Policy No: 6079684571 Page 10 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 InsureQ Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted materfaf of Insurance Services Office,Inc.,with Its permission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement 12. MEDICAL PAYMENTS A. LIMITS OF INSURANCE is amended to delete Paragraph 7. (the Medical Expense Limit) and replace it with the following: 7. Subject to Paragraph 5. above (the Each Occurrence Limit), the Medical Expense Limit is the most the Insurer will pay under Coverage C—Medical Payments for all medical expenses because of bodily injury sustained by any one person. The Medical Expense Limit is the greater of: (1) $15,000 unless a different amount is shown here: ; or (2) the amount shown in the Declarations for Medical Expense Limit. B. Under COVERAGES, the Insuring Agreement of Coverage C — Medical Payments is amended to replace Paragraph 1.a.(3)(b)with the following: (b) The expenses are incurred and reported to the Insurer within three years of the date of the accident; and 13. NON-OWNED AIRCRAFT Under COVERAGES, Coverage A — Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended as follows: The exclusion entitled Aircraft,Auto or Watercraft is amended to add the following: This exclusion does not apply to an aircraft not owned by any Named Insured, provided that: 1. the pilot in command holds a currently effective certificate issued by the duly constituted authority of the United States of America or Canada, designating that person as a commercial or airline transport pilot; 2. the aircrafi is rented with a trained, paid crew to the Named Insured; and 0 0 3. the aircraft is not being used to carry persons or property for a charge. 14. NON-OWNED WATERCRAFT Under COVERAGES, Coverage A -- Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete subparagraph (2) of the exclusion entitled Aircraft, Auto or Watercraft, and replace it with the following. sThis exclusion does not apply to: (2) a watercraft that is not owned by any Named Insured, provided the watercraft is: (a) less than 75 feet long;and (b) not being used to carry persons or property for a charge. 15. PERSONAL AND ADVERTISING INJURY—DISCRIMINATION OR HUMILIATION A. Under DEFINITIONS,the definition of personal and advertising Injury is amended to add the following tort: • Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. B. Under COVERAGES, Coverage B — Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to: 1. delete the Exclusion entitled Knowing Violation Of Rights Of Another and replace it with the following: This insurance does not apply to: CNA74872XX(1-15) Policy No: 6079684571 Pace 11 of 14 ' Endorsement No: 6 Valley Forge Insurance Company I (affective Data: 11/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA AEI Rights Reserved, Includes copyrighted material of Insurance Services Office,Inc.,with Its permisslon. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement Knowing Violation of Rights of Another Personal and advertising injury caused by or at the direction of the Insured with the Knowledge that the act would violate the rights of another and would inflict personal and advertising injury.This exclusion shall not apply to discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is not done intentionally by or at the direction of: (a) the Named Insured; or (b) any executive officer, director, stockholder, partner, member or manager (if the Named Insured is a limited liability company)of the Named Insured. 2. add the following exclusions: This insurance does not apply to: Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person by any Insured. Premises Related Discrimination discrimination or humiliation arising out of the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any Insured. Notwithstanding the above, there is no coverage for fines or penalties levied or imposed by a governmental entity because of discrimination. The coverage provided by this PERSONAL AND ADVERTISING INJURY —DISCRIMINATION OR HUMILIATION Provision does not apply to any person or organization whose status as an Insured derives solely from • Provision 1.ADDITIONAL INSURED of this endorsement; or • attachment of an additional insured endorsement to this Coverage Part. 16. PERSONAL AND ADVERTISING INJURY-LIMITED CONTRACTUAL LIABILITY A. Under COVERAGES, Coverage B --Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Contractual Liability and replace it with the following: This insurance does not apply to: Contractual Liability Personal and advertising injury for which the Insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) that the Insured would have in the absence of the contract or agreement; or (2) assumed in a contract or agreement that is an insured contract provided the offense that caused such personal or advertising Injury first occurred subsequent to the execution of such insured contract. Solely for the purpose of liability assumed in an insured contract, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an Insured are deemed to be damages because of personal and advertising injury provided: (a) liability to such party for, or for the cost of, that party's defense has also been assumed in such insured contract; and (b) .such attorney fees and litigation expenses are for defense of such party against a civil or alternative dispute resolution proceeding in which covered damages are alleged. CNA74872XX(1-15) Pollcy No: 6079684571 Page 12 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 1 1/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC copyright CNA All Rights Reserved. Includes copyrighted material of Insurance services Office,Inc.,with Its permission. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement B. Solely for the purpose of the coverage provided by this paragraph, DEFINITIONS is amended to delete the definition of insured contract in its entirety, and replace it with the following: Insured contract means that part of a written contract or written agreement pertaining to the Named Insured's business under which the Named Insured assumes the tort liability of another party to pay for personal. or advertising injury arising out of the offense of false arrest, detention or imprisonment. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. C. Solely for the purpose of the coverage provided by this paragraph, the following changes are made to the Section entitled SUPPLEMENTARY PAYMENTS--COVERAGES A AND B: 1. Paragraph 2.d.is replaced by the following: d. The allegations in the suit and the information the Insurer knows about the offense alleged in such suit are such that no conflict appears to exist between the interests of the Insured'and the interests of the indemnitee; 2. The first unnumbered paragraph beneath Paragraph 2.f.(2)(b)is deleted and replaced by the following: So long as the above conditions are met, attorneys fees incurred by the Insurer in. the defense of that indemnitee, necessary litigation expenses incurred by the Insurer, and necessary litigation expenses incurred by the indemnitee at the Insurer's request will be paid as defense costs. Notwithstanding the provisions of Paragraph e.(2)of the Contractual Liability exclusion (as amended by this Endorsement), such payments will not be deemed to be damages for personal and advertising Injury and will not reduce the limits of insurance. D. This PERSONAL AND ADVERTISING INJURY-LIMITED CONTRACTUAL LIABILITY Provision does not apply if Coverage B—Personal and Advertising Injury Liability is excluded by another endorsement attached to this Coverage Part. 0 17. PROPERTY DAMAGE—ELEVATORS A. Under COVERAGES, Coverage A — Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended such that the Damage to Your Product Exclusion and subparagraphs(3), (4)and(6)of 0 the Damage to Property Exclusion do not apply to property damage that results from the use of elevators. B. Solely for the purpose of the coverage provided by this PROPERTY DAMAGE — ELEVATORS Provision, the g Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other W basis that is Property insurance covering property of others damaged from the use of elevators. 4 18. SUPPLEMENTARY PAYMENTS s 0 The section entitled SUPPLEMENTARY PAYMENTS--COVERAGES A AND B is amended as follows: A. Paragraph 1.b.is amended to delete the$250 limit shown for the cost of bail bonds and replace it with a $5,000. limit; and .i B. Paragraph 1.d. is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000. limit. 19. PROPERTY DAMAGE-PATTERNS MOLDS AND DIES Under COVERAGES, Coverage A — Bodily Injury and Property Damage Llability, the paragraph entitled Exclusions is amended to delete subparagraphs(3)and (4)of the Exclusion entitled Damage to Property, but only with respect to patterns, molds or dies that are in the care, custody or control of the Insured, and only if such patterns, molds or dies are not being used to perform operations at the time of loss. A limit of insurance of$25,000 per policy period applies to this PROPERTY DAMAGE-PATTERNS MOLDS AND DIES coverage, and this limit: CNA74872XX(1-15) Policy No: 6079GB4571 Paae 13 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office,Inc.,with Its perMsslon. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 CNA CNA PARAMOUNT Technology General Liability Extension Endorsement A. is included within the General Aggregate Limit as described in LIMITS OF INSURANCE; and B. applies excess over any valid and collectible property insurance available to the Insured, including any deductible applicable to such insurance;the Other Insurance condition is changed accordingly. 20. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named Insured's Coverage Part,the insurer will not deny coverage under this Coverage Part because of such failure. 21. WAIVER OF SUBROGATION-BLANKET Under CONDITIONS, the condition entitled Transfer Of Rights Of Recovery Against Others To Us is amended to add the following: The Insurer waives any right of recovery the Insurer may have against any person or organization because of payments the Insurer makes for injury or damage arising out of: 1. the Named Insured's ongoing operations; or 2. your work included in the products-completed operations hazard. However,this waiver applies only when the Named Insured has agreed in writing to waive such rights of recovery in a written contract or written agreement, and only if such contract or agreement: 1. is in effect or becomes effective during the term of this Coverage Part; and 2. was executed prior to the bodily injury, property damage or personal and advertising Injury giving rise to the claim. All other terms and conditions of the Policy remain unchanged. This endorsement,which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. CNA74872XX(1-15) Policy No: 6079684571. Pace 14 of 14 Endorsement No: 6 Valley Forge Insurance Company Effective Date: 11/15/2021 Insured Name: CLUBESSENTIAL HOLDINGS LLC Copyrlght CNA All Rights Reserved. Includes copyrighted material of Insurance Services Off Ice,Inc.,with Its permisslon. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 Business Auto Policy CNA_ Policy Endorsement I IBM;ED 11 11D 0 Na I-is N THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. B This endorsement identifies person(s) or organization(s) who are "insureds" for Covered Autos Liability z Coverage under the Who Is An Insured provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. 0 r~ Named Insured: CLUBE±SSENTIAL HOLDINGS LLC M Endorsement Effective Date:11/15/2021 0 M O N 'iS ' 3. II' �, 1 I- 0110 � 3 fk' €. OO d 11 Name Of Person(s) Or Organizationl's); 0 N ANY PERSON OR ORGANIZATION THAT THE NAMED INSURED IS OBLIGATED TO PROVIDE INSURANCE WHERE REQUIRED BY A WRITTEN CONTRACT OR AGREEMENT 1S AN INSURED,BUT ONLY WITH RESPECT TO LEGAL RESPONSIBILITY FOR ACTS OR OMISSIONS OF A PERSON/ORGANIZATION FOR WHOM LIABILITY COVERAGE IS AFFORDED UNDER THIS POLICY. information required to complete this Schedule, if not shown above, will be shown in the Declarations. Each person or organization shown in the Schedule is an "insured" for Covered Autos Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured provision contained in Paragraph A.1. of Section II - Covered Autos Liability Coverage in the Business Auto and Motor Carrier Coverage Forms and Paragraph D,2, of Section I - Covered Autos Coveragesof the Auto Dealers Coverage Form. Form No:CA 20 48 10 13 Policy No: 6079684568 Endorsement Effective Date: 11/15/2021 Endorsement Expiration Date: 11/15/2022 Policy Effective Date: 11/15/2021 Endorsement No: 26; Page: 1 or i Underwriting Company: Valley Forge Insurance Company copyright Insurance Services Office, Inc.,2011 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 Business Auto Policy CNA Policy Endorsement M THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. R y This endorsement changes the policy effective on the inception date of the policy unless another date is z indicated below. Named Insured: CLUBESSENTIAL HOLDINGS LLC Endorsement Effective Date: 11/15/2021 M r~ IA s e0. P` r nri Orga;izat� ri `s 6 ro N -se .w - a. ��k E6 6& a. s ANY PERSON OR ORGANIZATION FOR WHOM OR WHICH YOU ARE REQUIRED BY WRITTEN CONTRACT co OR AGREEMENT TO OBTAIN THIS WAIVER FROM US. YOU MUST AGREE TO THAT REQUIREMENT PRIOR g TO LOSS. Q [Information required to complete this Schedule, if not shown above; will be shown in the Declarations. The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organization(s) shown in the Schedule, but only to the extent that subrogation is waived prior to the "accident" or the "loss" under a contract with that person or organization. Form No:CA 04 44 10 13 Policy No: 6079684568 Endorsement Effective Date 11/15/2021 Endorsement Expiration Date: 11/15/2022 Policy Effective Date: 11/15/2021 Endorsement No: 1; Page: 1 of 1 Policy Page: 35 of 58 Underwriting Company: Valley Forge Insurance Company ®Copyright Insurance Services Office, Inc.,2011 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 Workers Compensation And Employers Liability Insurance CNA . Policy Endorsement 0 We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Any person or organization for which the employer has agreed by written contract, executed prior to loss, may execute a waiver of subrogation. However, for purposes of work performed by the employer in Missouri, this waiver of subrogation does not apply to any construction group of classifications as designated by the waiver of right to recover from others (subrogation) rule in our manual. cc W Schedule y 2 Any Person or Organization on whose behalf you are required to obtain this waiver of our right to recover from under a written contract or agreement. The premium charge for the endorsement is reflected in the Schedule of Operations. 0 All other terms and conditions of the policy remain unchanged, a m g !This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers,'' r takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another E effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy j unless another expiration date is shown below. a 0 0 i � 1 �r Form No:WC 00 03 13 (04-1984) Policy No:6079684599 Endorsement Effective Date 11/15/2021 Endorsement Expiration Date: 11/15/2022 Policy Effective Date: 11/15/2021 Endorsement No:3; Page: 1 of 1 Policy Page: 191 of 318 Underwriting Company:The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 Copyright 1983 National Council on Compensation insurance. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 DNA Workers Compensation And Employers Liability Insurance Policy Endorsement ��OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the Information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by a written contract to obtain this waiver from us. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. Schedule 1. Specific Waiver Name of person or organization X❑ Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: All Texas Operations 3. Premium: The premium charge for this endorsement shall be 2% percent of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4. Advance Premium: Refer to Schedule of Operations All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. Form No: WC 42 03 04 B (06-2014) Policy No:6079684599 Endorsement Effective Date: 11/15/2021 Endorsement Expiration Date: 11/15/2022 Policy Effective Date: 11/15/2021 Endorsement No: 56; Page: 1 of 1 Policy Page: 213 of 219 Underwriting Company: The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 Copyright 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 C&F TCM TECHNOLOGY E&O, CYBER AND MULTIMEDIA LIABILITY INSURANCE POLICY In consideration of the premium paid, the Insured's compliance with the conditions of this Policy and subject to its terms (including all endorsements); and in reliance on the statements made in the Application and the information and documents provided to the Insurer by the Insured, all of which are made a part of this Policy, the Insurer agrees with the Insured as follows: I. INSURING AGREEMENTS Only those Insuring Agreements indicated in Item 3. of the Declarations as PURCHASED shall be applicable to the Insured's coverage hereunder. If the Declarations do not indicate that a Coverage was purchased, that Coverage of this Policy has not been purchased by the Insured and no coverage shall apply for the corresponding Insuring Ag reement(s). Coverage A: Technology E&O and Professional Liability The Insurer will pay on behalf of the Insured such Damages and Claims Expenses in excess of the Deductible that any Insured is legally obligated to pay because of a Claim first made against an Insured during the Policy Period because of a Technology/Professional Error that first takes place on or after the Retroactive Date provided that such Claim is reported to the Insurer in full compliance with the Notice Requirements. Coverage B: Cyber Liability The Insurer will pay on behalf of the Insured such Damages and Claims Expenses in excess of the Deductible that any Insured is legally obligated to pay because of a Claim first made against an Insured during the Policy Period because of a Cyber Event provided that such Claim is reported to the Insurer in full compliance with the Notice Requirements. Coverage C: Multimedia Liability The Insurer will pay on behalf of the Insured such Damages and Claims Expenses in excess of the Deductible that any Insured is legally obligated to pay because of a Claim first made against an Insured during the Policy Period for Multimedia Liability provided that such Claim is reported to the Insurer in full compliance with the Notice Requirements. Coverage D: Breach Costs The Insurer will reimburse the Named Insured for all Breach Costs in excess of the Deductible resulting from an actual or reasonably suspected Cyber Event that the Insured Entity first discovers during the Policy Period and that is reported to the Insurer in full compliance with the Notice Requirements. Provided that when the Named Insured agrees to utilize vendors nominated by the Crum & Forster Cyber Response Team shown in Item 11. of the Declarations, the Insurer shall pay on behalf of the Insured those Breach Costs set forth in the paragraph above applicable to such vendor nominated by the Crum & Forster Cyber Response Team. Coverage E: eCrime Loss The Insurer will indemnify the Named Insured for direct financial loss in excess of the Deductible resulting from an eCrime Event that the Insured Entity first discovers during the Policy Period and that is reported to the Insurer in full compliance with the Notice Requirements. Coverage F: First Party Loss The Insurer will indemnify the Named Insured for First Party Loss in excess of the Deductible resulting from a Cyber Event that the Insured Entity first discovers during the Policy Period and that is reported to the Insurer in full compliance with the Notice Requirements. TCM-POL-001 (01/19) Page 1 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 With respect to each Insuring Agreement stated above, the amount that the Insurer is obligated to pay is limited based on the applicable Limit of Liability as described in Section VI., Limits of Liability. In addition, in connection with any Cyber Event that results in Breach Costs or First Party Loss that exceeds the Deductible, the Insurer will also provide Supplemental Payments & Services which shall be part of, and not in addition to, the Aggregate Limit of Liability specified in Item 4. of the Declarations. II. DEFENSE AND SETTLEMENT OF CLAIMS A. Defense of Claims: The Insurer shall have the right and duty to defend, subject to all the provisions, terms and conditions of this Policy, any Claim made against an Insured seeking Damages which are payable under the terms of this Policy, even if any of the allegations of the Claim are groundless, false or fraudulent. Defense counsel shall be mutually agreed between the Named Insured and the Insurer, provided that in the absence of such agreement, the Insurer's decision will be final. B. Settlement of Claims: The Insurer may not settle any Claim without the written authorization of the Named Insured. If the Named Insured refuses to consent to any settlement or compromise recommended by the Insurer and acceptable to the claimant and elects to contest the Claim, then the Insurer will have the right to withdraw from the further defense of such Claim and the Insurer's liability for Damages and Claims Expenses shall not exceed: 1. the amount for which the Claim could have been settled, less the remaining Deductible, plus the Claims Expenses incurred up to the time of such refusal; plus 50% of any Claims Expenses incurred after the date such settlement or compromise was recommended to the Insured plus 50% of any Damages above the amount for which the Claim could have been settled. The remaining 50% of such Claims Expenses and Damages must be borne by the Insured at their own risk and uninsured; or 2. the applicable Limit of Liability, whichever is less. The Insured may settle any Claim where the Damages and Claims Expenses do not exceed the Deductible, provided that the entire Claim is resolved and the Insured obtains a full release on behalf of all the Insureds and the Insurer from all claimants. III. DEFINITIONS A. Breach Costs means the following reasonable and necessary expenses incurred by the Insured Entity with respect to a Cyber Event and with the prior written consent of the Insurer, provided that if services are recommended by the Crum & Forster Cyber Response Team shown in Item 11. of the Declarations, and the Named Insured agrees to utilize the applicable vendors nominated by the Crum & Forster Cyber Response Team, then prior consent of the Insurer shall not be required: 1. for an attorney to provide necessary legal advice to the Insured Entity to evaluate the Insured Entity's legal obligations in connection with an actual or reasonably suspected Cyber Event; 2. for a computer security expert, or experts, to determine the existence, cause and scope of a Cyber Event as well as the costs to contain an ongoing Cyber Event, including the cost to retain a PCI Forensic Investigator if required by a written agreement between the Insured Entity and a financial institution, credit or debit card company, credit or debit card processor, merchant bank or any other entity offering or providing merchant card transaction processing or payment gateway services to the Insured Entity; 3. to notify individuals or entities whose Protected Information was potentially impacted by a Cyber Event. This shall include costs incurred by the Insured Entity to directly notify individuals on behalf of a third party that has the legal obligation to notify such individuals, provided that such third party agrees to allow the Insured Entity to notify such individuals on their behalf; 4. for a call center to respond to inquiries from individuals that the Insured Entity has notified because their Protected Information was potentially impacted by a Cyber Event; 5. to provide a credit monitoring or identity monitoring product to individuals that the Insured Entity has notified because their Protected Information was potentially impacted by a Cyber Event. Such credit monitoring or identity monitoring product will be provided for a period of 12 months unless the Insured Entity is required by law or regulation to provide such a credit monitoring or identity monitoring product for a longer period of time. TCM-POL-001 (01/19) Page 2 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 In that case, such credit monitoring or identity monitoring product will be provided for the period of time required by law or regulation; and 6. for public relations and crisis management costs directly related to mitigating harm to the Insured Entity which are approved in advance by the Insurer. B. Claim means a written demand for money, services, non-monetary relief or injunctive relief, including service of suit or arbitration proceedings made against any Insured. Only as respects Coverage B., Cyber Liability, Claim also means a request for information from, or civil proceeding against, the Insured Entity brought by a Regulatory Body directly arising from an Insured's actual or alleged violation of any Privacy Law. Multiple Claims arising from the same or a series of related or repeated acts, errors or omissions, or from any continuing acts, errors or omissions, or from a series of related or repeated Technology/Professional Errors or Cyber Events, shall be considered a single Claim for the purposes of this Policy, regardless of the number of claimants or Insureds involved in the Claim. All such Claims shall be deemed to have been made at the time of the first such Claim. C. Claims Expenses means: 1. reasonable and necessary legal fees, costs and expenses directly resulting from the investigation, adjustment, settlement and/or defense of a Claim; and 2. the premiums for appeal, attachment or similar bonds, but only for bond amounts within the applicable Limits of Liability. The Insurer does not have to furnish these bonds. Claims Expenses do not include: a. salaries, wages, fees, remuneration, overhead, benefits or expenses of an Insured; b. Damages, fines, penalties, fees, or taxes levied or assessed against an Insured; c. fees, costs, or expenses incurred by the Insured prior to the time that a Claim is made or which are paid or incurred without the Insurer's prior written consent. These unilaterally incurred fees, costs or expenses will not be reimbursed by the Insurer and will not reduce any Deductible under the Policy; or d. the costs and expenses required to comply with any injunctive or other non-monetary, equitable, declaratory, regulatory or administrative relief, including but not limited to specific performance, or any agreement to provide such relief. D. Continuity Date means the date listed in Item 7. of the Declarations. E. Control Group means any principal, partner, corporate officer, director, general counsel (or most senior legal counsel) or risk manager of the Insured Entity and any individual in a substantially similar position. F. Cyber Event means: 1. a Cyber Extortion Threat; 2. an unintentional and unplanned interruption of any computer system; 3. a theft, loss or Unauthorized Disclosure of Protected Information that is in the care, custody or control of an Insured or a third party for whose theft, loss or Unauthorized Disclosure of Protected Information the Insured Entity is legally responsible for; 4. the storage, collection, use or disclosure of Protected Information by or on behalf of the Insured Entity that is in violation of a Privacy Law; 5. the failure to notify a third party of a theft, loss or Unauthorized Disclosure of Protected Information in violation of a Privacy Law; or 6. the access to, or the use of, a computer system by a person or organization that is not authorized to do so. G. Cyber Extortion Threat means a demand made against the Insured Entity for the payment of monies (including a digital currency), marketable goods or services in order to prevent or terminate the: 1. disclosure of Protected Information; 2. introduction of unauthorized, unwanted or harmful program, computer code or script into a computer system. An unwanted or harmful program, computer code or script includes a computer virus, Trojan horses, worms, time or logic bombs, spyware, malware, spiderware, or ransomware; 3. corruption, alerting, deletion or destruction of data or software stored on a computer system; TCM-POL-001 (01/19) Page 3 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 4. restriction or hindering of access to a computer system or to data stored on a computer system; 5. interruption or suspension of a computer system; or 6. electronic communication with the Insured Entity's customers impersonating the Insured Entity in order to obtain Protected Information. H. Cyber Terrorism means any act directed against a computer system by an individual or group(s) of individuals, whether acting alone, on behalf of or in connection with any organization(s) or government(s), to cause unauthorized access to, unauthorized use of, or a targeted denial of service attack or transmission of unauthorized, corrupting or harmful software code to a computer system for the purpose of furthering social, ideological, religious, economic or political objectives, intimidating or coercing a government or the civilian population thereof, or disrupting any segment of the economy that is not accompanied by, directly associated with or coordinated with armed conflict or the use of physical force. I. Damages means a monetary judgment, award or settlement including prejudgment and post-judgment interest, and punitive damages, exemplary damages or any damages which are a multiple of compensatory damages (if insurable under the applicable law most favorable to the insurability of punitive, exemplary or multiple damages), which the Insured becomes legally obligated to pay as the direct result of a covered Claim. Solely with respect to Coverage B., Cyber Liability, Damages also include: 1. civil fines or penalties levied upon an Insured by a Regulatory Body, provided that this does not include amounts for matters uninsurable under the law; 2. any fine, penalty, reimbursement, fraud recovery, or assessment imposed upon or owed by an Insured under the terms of a written agreement between the Insured Entity and a financial institution, credit or debit card company, credit or debit card processor, merchant bank or any other entity offering or providing merchant card transaction processing or payment gateway services to the Insured Entity; provided that this does not include any charge back amounts, interchange fees, discount fees, or other prospective fees owed under such an agreement; and 3. up to$2,500 for the costs and expenses of complying with any injunctive or other non-monetary relief. As respects all coverage parts under this Policy, Damages do not include: a. any amount for which the Insured is not liable or is not legally obligated to pay; b. except as noted in paragraph 1. and 2. above, any fines or monetary penalties or multiples thereof; c. taxes or the loss of tax benefits; d. liquidated damages, but only to the extent that such damages exceed the amount for which the Insured would have been liable in the absence of such liquidated damages agreement; e. matters uninsurable under the laws applicable to this Policy; f. past, present and future earned and unearned royalties, profits, fees, costs, expenses, commissions, and profits unlawfully or unjustly held or obtained including, but not limited to, the return, offset, disgorgement or restitution of such royalties, profits, fees, costs, expenses, commissions, and profits unlawfully or unjustly held or obtained; g. except as noted in paragraph 3. above, the costs and expenses of complying with any injunctive or other non-monetary equitable, declaratory, regulatory or administrative relief including, but not limited to, specific performance, or any agreement to provide such relief; h. costs incurred by an Insured to correct, re-perform or complete any Professional Services or Technology Services; and i. discounts, prizes, awards, coupons or other incentives offered to the Insured's clients or customers. J. Deductible means the amount listed in Item 5. of the Declarations and described in Section VII. of this Policy. K. Dependent Systems Event means the unintentional and unplanned interruption of computers or associated hardware, software, or firmware, including network devices and backup components owned, leased, operated or controlled by a third party that provides services or products to the Insured Entity pursuant to a written contract. L. eCrime Event means: 1. the loss of the Insured Entity's money or securities that results solely from a wrongful transfer, payment or delivery of such money or securities by an Insured as a sole result of fraudulent electronic or telephone instructions provided by a third party, that is intended to mislead the Insured through the misrepresentation of TCM-POL-001 (01/19) Page 4 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 a material fact which is relied upon in good faith by such Insured, including such loss resulting from business e-mail compromise, social engineering, spear-phishing and e-mail spoofing; 2. the loss of money or securities from an account at a financial institution resulting solely from fraudulent electronic or telephone instructions issued by a third party to a financial institution directing such institution to transfer, pay or deliver money or securities from any account maintained by the Insured Entity at such institution, without the Insured Entity's knowledge or consent; or 3. the act of a third party gaining access to and using the Insured Entity's telephone system in an unauthorized manner. eCrime Event does not include: a. any loss arising, directly or indirectly from an Insured's acceptance, deposit or handling of: i. counterfeit currency or bank drafts; ii. a bank draft, check or other financial instrument returned due to insufficient funds; iii. counterfeit securities, bonds or other financial instruments; or iv. counterfeit goods of any kind, including, but not limited to, loss arising from a transfer of money by an Insured to a third party associated with an Insured's acceptance, deposit or handling of such items; b. any loss arising, directly or indirectly, from loan fraud, mortgage fraud or accounting fraud including, but not limited to, check kiting, money laundering or fraudulent loan schemes. This includes loss arising from a transfer of money by an Insured to a third party associated with any such fraud; c. any actual or alleged use of credit, debit, charge, access, convenience, customer identification or other cards; d. any transfer involving a third party who is not a natural person Insured, but had authorized access to the Insured's authentication mechanism; e. the processing of, or the failure to process, credit, check, debit, electronic benefit transfers or mobile payments for merchant accounts; f. any accounting or arithmetical errors or omissions, or the failure, malfunction, inadequacy or illegitimacy of any product or service; or g. any fraudulent, dishonest or criminal act committed by any natural person Insured. M. First Party Loss means the value of monies (including money in the form of a digital currency), marketable goods or services paid or delivered under duress by or on behalf of the Insured Entity, with the Insurer's prior written consent, solely for the purpose of terminating a Cyber Extortion Threat. If the Declarations indicates that the Insured has purchased "Extended" First Party Loss coverage, then First Party Loss also means: 1. the reasonable and necessary costs charged by a vendor designated or approved in writing by the Insurer to restore, replace or recreate software or electronic data to its condition immediately prior to the Cyber Event but only for such costs that are as a direct result of the Cyber Event; 2. the reasonable and necessary expenses incurred by the Insured Entity during the Indemnity Period to continue or maintain normal operations that are over and above those expenses the Insured Entity would have incurred had no Cyber Event occurred; 3. the net profit or loss without interest and before tax that the Insured Entity would have earned or incurred during the Indemnity Period due to the actual interruption or impairment of the Insured Entity's business operations as a direct result of the Cyber Event, plus the continuing normal operating expenses incurred by the Insured Entity during the Indemnity Period (including payroll), but only to the extent that such operating expenses must necessarily continue during the Indemnity Period; and 4. the cost to repair or replace computer hardware or equipment that is damaged or impaired and must be replaced. First Party Loss does not include, except as described in Section V., Supplemental Payments & Services, any costs attributed to an upgrade or improvement of electronic data, software or computer systems beyond what existed prior to the Cyber Event unless such upgrade or improvement is reasonable because of improvements in the available technology. N. Indemnity Period means the period of time that begins after the elapse of the Waiting Period indicated in Item 8. of the Declarations and ends 60 days after the time when the Insured Entity could have resumed normal TCM-POL-001 (01/19) Page 5 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 operations with the exercise of due diligence and dispatch, not limited by the expiration date of this Policy. Despite any other provisions in this Policy, the maximum Indemnity Period is 180 days. O. Insured means: 1. the Named Insured, each Subsidiary and each Newly Acquired Entity; 2. any past or present employee (including a part time, temporary, leased or season employee), principals, partners, executive officers or directors of an Insured Entity but only while acting within the scope of their duties as such; 3. any past or present natural person independent contractor who performs labor or service for the Insured Entity pursuant to a written contract or agreement, where such labor or service is under the exclusive direction of the Insured Entity, but only while acting in the scope of their duties as such and in the performance of labor or service to the Insured Entity. The status of an individual as an independent contractor shall be determined as of the date of an alleged act, error or omission by any such independent contractor; 4. any spouse or the legally recognized domestic partner (whether by state or federal law) of any person otherwise qualifying as an Insured, but solely with respect to their status as such; 5. in the event of death, incapacity, bankruptcy or insolvency of any Insured, such Insured's heirs, estate, executors, administrators and legal representative in his or her capacity as such, but only with respect to matters for which the Insured otherwise would have been entitled to coverage under this Policy; and 6. only as respects Coverage A., Technology E&O and Professional Liability, Coverage B., Cyber Liability and Coverage C., Multimedia Liability, any person or entity that the Insured Entity has agreed in writing to add as an additional insured under this Policy prior to the commission of any act for which such person or entity would be provided coverage under this Policy, but only for the vicarious liability of such additional insured for the wrongful acts of an Insured. P. Insured Entity means the Named Insured, each Subsidiary and each Newly Acquired Entity. Q. Insurer means the insurance company listed in the Declarations. R. Loss means Breach Costs, First Party Loss, financial loss from an eCrime Event, Damages and Claims Expenses. S. Multimedia Liability means one or more of the following acts committed by, or on behalf of, the Insured Entity in the course of creating, displaying, broadcasting, publishing, disseminating or releasing Multimedia Material to the public: 1. defamation, libel, slander, product disparagement, trade libel, infliction of emotional distress, outrage, outrageous conduct, or other tort related to disparagement or harm to the reputation or character of any person or organization; 2. a violation of the rights of privacy of an individual, including false light, intrusion upon seclusion and public disclosure of private facts; 3. invasion or interference with an individual's right of publicity, including commercial appropriation of name, persona, voice or likeness; 4. plagiarism, piracy, or misappropriation of ideas under implied contract; 5. infringement of copyright; 6. infringement of domain name, trademark, trade name, trade dress, logo, title, metatag, or slogan, service mark or service name; 7. improper deep-linking or framing; 8. negligent publication of content; or 9. unfair competition, if alleged in conjunction with any of the acts listed in paragraphs 5. or 6. above. T. Multimedia Material means the content of material published or broadcast by, or on behalf of, the Insured Entity, including any information, words, sounds, numbers, images or graphics included in such content, but will not include computer software or the actual goods, products or services described, illustrated or displayed in such content. U. Named Insured means the entity, individual, partnership or corporation shown in Item 1. of the Declarations. TCM-POL-001 (01/19) Page 6 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 V. Newly Acquired Entity means any entity formed or acquired by the Named Insured during the Policy Period and in which the Named Insured has more than 50% of the legal or beneficial interest, provided that if the trailing 12 month revenues for such entity exceed 15% of the Named Insured's annual revenues for the same trailing 12 month period, then only if all of the following conditions are met: 1. within 90 days of the formation of a Newly Acquired Entity, the Named Insured notifies the Insurer in writing of the details of such merger, acquisition, or newly created joint venture or partnership; 2. the Named Insured agrees to any changes in terms and conditions of this Policy related to the Newly Acquired Entity including, but not limited to, the payment of additional premium, if any, charged by the Insurer; and 3. the Insurer has issued a written endorsement specifically noting the addition of the Newly Acquired Entity as a covered Insured under this Policy. W. Notice Requirements means the requirements described in Section VIII. of this Policy. X. Policy Period means the length of time between the effective date shown in Item 2. of the Declarations and the earlier of: 1. the expiration date shown in Item 2. of the Declarations; or 2. the cancellation date of this Policy. Y. Privacy Law means a federal, state or foreign statute or regulation: 1. requiring the Insured Entity to protect the confidentiality or security of Protected Information; 2. requiring notice to a person or organization whose Protected Information was accessed or reasonably may have been accessed by an unauthorized person; or 3. governing the collection, use or storage of Protected Information by the Insured Entity. Z. Professional Services means professional services performed for others by or on behalf of the Insured Entity for a fee or other consideration, but does not include Technology Services, any services involving the creation, development, sale, distribution, installation, licensing or manufacturing of Technology Products, or work or activities performed by or on behalf of the Insured Entity or for the Insured Entity as an accountant, actuary, attorney, architect, surveyor, health care provider, lawyer, insurance or real estate agent or broker, or civil or structural engineer. AA. Protected Information means the following information that an Insured has a legal obligation to safeguard, protect or maintain in confidence: 1. non-public individually identifiable information as defined by any federal, state, local or foreign statute, rule or regulation; 2. an individual's social security number, taxpayer identification number, unpublished telephone number, driver's license number, state identification number, passport number, financial account number, credit card number, debit card number or the magnetic strip information from a credit or debit card; and 3. any trade secret, data, design, interpretation, forecast, formula, method, record, report or other item of information of a third party that is not available to the general public. BB. Regulatory Body means any federal, state, local or foreign governmental entity in such entity's regulatory or official capacity. CC.Retroactive Date means the date listed in Item 6. of the Declarations. DD.Subsidiary means any entity in which the Named Insured as of the effective date of the Policy, either: 1. directly or indirectly owns more than 50% of the issued and outstanding voting equity securities; or 2. controls voting rights representing the present right to vote for election or to appoint more than 50% of the directors or trustees. EE. Supplemental Payments & Services means the amounts described in Section V. of this Policy. TCM-POL-001 (01/19) Page 7 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 FF. Technology/Professional Error means: 1. a negligent act, error, omission, misstatement, misleading statement or misrepresentation in rendering or failure to render Professional Services or Technology Services; 2. a negligent act, error, omission, misstatement, misleading statement or misrepresentation that results in a failure of Technology Products to perform the function or serve the purpose intended; 3. an unintentional breach of a contractual obligation to perform Professional Services or Technology Services, or to deliver Technology Products; or 4. an unintentional infringement of copyright committed by the Insured Entity with respect to software Technology Products. GG.Technology Products means any computer or telecommunications hardware or software product, or related electronic product, including software updates, service packs and other maintenance releases provided for such products, that is: 1. created, manufactured or developed by the Insured Entity for others in exchange for a fee or other consideration; or 2. distributed, licensed, leased or sold by the Insured Entity to others in exchange for a fee or other consideration. HH.Technology Services means any of the following services performed by or on behalf of the Insured Entity for others for a fee or other consideration: 1. computer information technology, Internet, network or website analysis, development, programming, installation, integration, networking, hosting, processing, management, operations, data security, maintenance, repair, optimization, support, or training; 2. providing, collecting, recording, caching, compiling, mining, analyzing, storing, hosting, processing, securing, backup, wiping, or destroying software or data; 3. telecommunications services, including Internet, voice, video, web, email, text, data, or broadband services, any call center or customer service support related to such telecommunications services; 4. any services similar to those services described in paragraphs 1-3 above; or 5. any other information technology-related services provided in conjunction with Technology Products. II. Unauthorized Disclosure means the disclosure (including disclosure resulting from phishing) of or access to information in a manner that is not authorized by the Insured Entity and is without knowledge, consent or acquiescence of any member of the Control Group. JJ. Waiting Period means the period starting upon the actual interruption or impairment of the Insured Entity's business operations caused by a Cyber Event and ending after the number of hours specified in Item 8. of the Declarations. IV. EXCLUSIONS The Insurer shall not be liable to defend, pay, indemnify or reimburse the Insured with respect to any Claim or Loss based upon, resulting from, arising out of, in consequence of, or in any way connected with or involving, directly or indirectly: A. the actual or alleged distribution of unsolicited email, text messages, direct mail, facsimiles or other communications (including, but not limited to, any actual or alleged violation of the Telephone Consumer Protection Act of 1991 or the CAN-SPAM Act of 2003), wire tapping, audio or video recording, or telemarketing, if such distribution, wire tapping, recording or telemarketing is done by or on behalf of an Insured; however this exclusion will not apply to Claims Expenses incurred in defending the Insured against allegations of unlawful audio or video recording; B. any act, error, omission, incident or event committed or occurring prior to the effective date of this Policy if any member of the Control Group on or before the Continuity Date knew or could have reasonably foreseen that such act, error or omission, incident or event might be expected to be the basis of a Claim or Loss; C. any Claim, Loss, incident or circumstance for which notice has been provided under any prior policy of which this Policy is a renewal or replacement; TCM-POL-001 (01/19) Page 8 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 D. any criminal, dishonest, fraudulent, or malicious act or omission, or intentional or knowing violation of the law, if committed by an Insured, or committed by others if an Insured colluded or participated in any such conduct or activity; but this exclusion will not apply to: 1. Claims Expenses incurred in defending any Claim alleging the foregoing until there is a final non-appealable adjudication establishing such conduct, at which time the Named Insured shall reimburse the Insurer for all Claims Expenses incurred defending such Claim; 2. any natural person Insured, if such Insured did not personally commit, participate in or know about any act, error, omission, incident or event giving rise to such Claim or Loss; and 3. the Insured Entity, provided that no member of the Control Group personally committed, participated in or knew about any act, error, omission, incident or event giving rise to such Claim or Loss; E. any actual or alleged infringement, misuse or abuse of patent or patent rights; F. solely with respect to Coverage B., Cyber Liability, any actual or alleged infringement, use, misappropriation or disclosure of any intellectual property, including but not limited to trade secret misappropriation, copyright infringement, trademark infringement, trademark dilution or trade dress infringement; but this exclusion will not apply to any Claim or Loss resulting from a theft, use or disclosure of Protected Information by a person who is not a past, present or future employee, director, officer, partner or independent contractor of an Insured and without the knowledge, consent or acquiescence of any member of the Control Group; G. any actual or alleged use or misappropriation of any ideas or trade secrets by, or on behalf of, an Insured, or by any other person or entity if such use or misappropriation is done with the knowledge, consent or acquiescence of any member of the Control Group; H. a Claim made by or on behalf of: 1. any Insured; but this exclusion will not apply to a Claim made by an individual that is not a member of the Control Group under Coverage B., Cyber Liability, or a Claim made by any person or entity that the Insured Entity has agreed in writing to add as an additional insured under this Policy; or 2. any business enterprise in which an Insured has greater than 15% ownership interest or made by any parent company or other entity which owns more than 15% of an Insured Entity; I. any loss, transfer or theft of monies, securities or tangible property of the Insured or others in the care, custody or control of an Insured, but this exclusion will not apply to coverage under Coverage E., eCrime Loss; J. nuclear reaction, nuclear radiation, radioactive contamination, radioactive substance, electromagnetic field, electromagnetic radiation, or electromagnetism; K. war, invasion, acts of foreign enemies, hostilities (whether or not war is declared), rebellion, revolution, insurrection, war-like action, coup, usurped powers or military power; but this exclusion will not apply to Cyber Terrorism; L. any economic or trade sanction imposed by the United States including, but not limited to, sanctions administered and enforced by The United States Treasury Department's Office of Foreign Assets Control ("OFAC"); M. any presence, discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, oil or other petroleum substances or derivatives, waste materials or other irritants, contaminants, pollutants or any other substances including, but not limited to, asbestos, fungus, mold and lead, which are or may be injurious to public health, property or the environment ("hazardous substances") or the cost to: 1. clean up or removal of hazardous substances; 2. monitor, assess or evaluate, the presence, discharge, dispersal, escape, release, or threat of same, of hazardous substances; 3. dispose of hazardous substances or take such other action as may be necessary to temporarily or permanently prevent, minimize, or mitigate damage to the public health or welfare or to property or the environment, which may otherwise result; or TCM-POL-001 (01/19) Page 9 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 4. directly or indirectly respond to or address any government direction or request that the Insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize hazardous substances; N. any actual or alleged violation of the federal Fair Debt Collection Practices Act (FDCPA); O. any employment or labor relations policies, practices, acts or omissions, or any actual or alleged refusal to employ any person, or misconduct with respect to employees, whether such Claim is brought by an employee, former employee, applicant for employment, or relative or domestic partner of such person; provided, that this exclusion shall not apply to Coverage B., Cyber Liability, as respects an otherwise covered Claim by a current or former employee of the Insured Entity for Damages arising strictly from a Cyber Event; P. solely with respect to Coverage A., Technology E&O and Professional Liability: 1. any Technology/Professional Error committed or occurring prior to the Retroactive Date; 2. any liability assumed in any hold harmless or indemnity agreement other than a hold harmless or indemnity agreement with respect to intellectual property rights or breaches of the confidentiality of information of any third party; 3. the actual or alleged inaccurate, inadequate or incomplete description of the price of goods, products or services, cost guarantees, cost representations, contract price estimates, or the failure of any goods or services to conform with any represented quality or performance; 4. any gambling, contest, lottery, promotional game or other game of chance; 5. any breach of any express warranty or representation, except for an agreement to perform within a reasonable standard of care or skill consistent with applicable industry standards, or breach of any other contractual obligation which goes beyond an express or implied duty to exercise a degree of care or skill consistent with applicable industry standards; 6. any breach of guarantee, promises of cost savings, profits or return on investment; 7. delay in delivery or performance, or failure to deliver or perform at or within an agreed upon period of time, but this exclusion shall not apply if such delay or failure to deliver or perform is a consequence of a negligent act, error or omission committed during the course of providing Professional Services or Technology Services if the Insured has made diligent efforts to deliver or perform such Professional Services or Technology Services; 8. any costs or expenses incurred or to be incurred by an Insured or others for the withdrawal, recall, inspection, repair, replacement, reproduction, removal or disposal of: (a)Technology Products including, but not limited to, any products or other property of others that incorporate Technology Products; (b) work product resulting from or incorporating the results of Professional Services or Technology Services; or (c) any products or other property on which Professional Services or Technology Services have been performed; 9. any Claim covered under the terms of a commercial general liability insurance policy maintained by the Insured Entity, provided that this shall not apply to Damages or Claims Expenses in excess of the limits of liability of any such insurance policy; or 10. any actual or alleged deceptive trade practices, unfair trade practices, violation of consumer protection laws, antitrust violation, restraint of trade, unfair competition, false advertising, deceptive advertising, misleading advertising or violation of the Sherman Antitrust Act, the Clayton Act or the Robinson-Patman Act, as amended; Q. solely with respect to Coverages B., Cyber Liability, and C., Multimedia Liability: 1. any actual or alleged violation from the failure to properly truncate credit, debit or payment card information on receipts or statements as required by the Fair and Accurate Credit Transactions Act of 2003 (FACTA); 2. any Claim covered under the terms of a commercial general liability insurance policy, or an employment practices liability insurance policy maintained by the Insured Entity, provided that this shall not apply to Damages or Claims Expenses in excess of the limits of liability of any such insurance policy; and 3. the ownership, sale or purchase of, or the offer to sell or purchase stock or other securities, or an actual or alleged violation of a securities law or regulation; R. solely with respect to Coverage C., Multimedia Liability, any: 1. contractual liability or obligation; but this exclusion will not apply to a Claim for misappropriation of ideas under implied contract; 2. actual or alleged obligation to make licensing fee or royalty payments; TCM-POL-001 (01/19) Page 10 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 3. costs or expenses incurred or to be incurred by the Insured or others for the reprinting, reposting, recall, removal or disposal of any Multimedia Material or any other information, content or media including, but not limited to, any media or products containing such Multimedia Material, information, content or media; 4. Claim brought by or on behalf of any intellectual property licensing bodies or organizations; 5. actual or alleged inaccurate, inadequate or incomplete description of the price of goods, products or services, cost guarantees, cost representations, contract price estimates, false advertising or the failure of any goods or services to conform with any represented quality or performance; 6. gambling, contest, lottery, promotional game or other game of chance; or 7. Claim made by or on behalf of any independent contractor, joint venturer or venture partner arising out of or resulting from disputes over ownership of rights in Multimedia Material or services provided by such independent contractor, joint venturer or venture partner; S. solely with respect to Coverage E., eCrime Loss: any loss covered under the terms of a commercial crime insurance policy maintained by the Insured Entity, provided that this shall not apply to direct financial loss in excess of the limits of liability of any such insurance policy. T. solely with respect to Coverage F., First Party Loss, any First Party Loss: 1. arising from the seizure, nationalization, confiscation, or destruction of property or data by order of any governmental or public authority; 2. arising from fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, damage by water, landslide, act of God or any other physical event; 3. for additional costs to update, replace, restore, assemble, reproduce, recollect or enhance data or computer systems to a level beyond that which existed prior to a Cyber Event, except as covered under Section V., Supplemental Payments& Services; 4. arising from any failure or malfunction of satellites or of power, utility, mechanical or telecommunications (including, but not limited to, the internet) infrastructure or services that are not under the Insured Entity's direct operational control; or 5. covered under the terms of a property insurance policy providing coverage for risks of direct physical loss to property maintained by the Insured Entity, provided that this shall not apply to First Party Loss in excess of the limits of liability of any such insurance policy; V. SUPPLEMENTAL PAYMENTS &SERVICES In addition to the amounts described in Section I., Insuring Agreements, of this Policy, in the event of an actual Cyber Event that results in Breach Costs or First Party Loss that exceeds the Deductible, the Insurer shall also pay the following costs but only to reasonably and significantly reduce the possibility of a similar Cyber Event from occurring in the future: A. up to $10,000 for a third party consultant recommended by the Insurer to provide ongoing assistance to the Insured Entity to improve and upgrade computer security; and B. up to $5,000 for the purchase of computer equipment or computer software recommended by such third party consultant recommended by the Insurer. Such payments shall be part of, and not in addition to, the Aggregate Limit of Liability specified in Item 4. of the Declarations. VI. LIMITS OF LIABILITY A. The Aggregate Limit of Liability specified in Item 4. of the Declarations is the most the Insurer will pay for all Loss under this Policy. Once the Aggregate Limit of Liability has been exhausted, the Insurer shall have no further duty to defend the Insured for any Claim which may otherwise be covered by this Policy. B. The eCrime Loss Sublimit of Liability specified in Item 4. of the Declarations is the maximum amount the Insurer is obligated to pay in the aggregate for direct financial loss arising from an eCrime Event. The eCrime Loss Sublimit of Liability shall be part of, and not in addition to the Aggregate Limit of Liability. C. The Dependent Business Sublimit of Liability specified in Item 4. of the Declarations is the maximum amount the Insurer is obligated to pay in the aggregate for First Party Loss arising from a Dependent Systems Event. The TCM-POL-001 (01/19) Page 11 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 Dependent Business Sublimit of Liability shall be part of, and not in addition to the Aggregate Limit of Liability. D. The Aggregate Limit of Liability specified in Item 4. of the Declarations is the maximum the Insurer will pay regardless of the number of Insureds, individuals or organizations that make a Claim, the number of Claims made, the number of incidents, or the number of Dependent System Events, Cyber Events, eCrime Events, Supplemental Payments & Services or actual or alleged wrongful acts VII. DEDUCTIBLE The Deductible, as shown in Item 5. of the Declarations, applies separately to each act, incident or event giving rise to Breach Costs, Claims Expenses, Damages, direct financial loss or First Party Loss under Coverages A., B., C., D., E. and F., provided however, that multiple incidents or events arising from the same or a series of related or repeated acts or from any continuing acts, shall be considered a single incident or event for the purposes of this Policy and only one Deductible shall apply to all resulting Loss. The Insurer shall only be obligated to pay any Loss under this Policy in excess of the Deductible, provided that if services are recommended by the Crum & Forster Cyber Response Team shown in Item 11. of the Declarations, and the Insured Entity agrees to utilize only those vendors nominated by the Crum & Forster Cyber Response Team, then the Deductible shall not apply to the following Breach Costs: A. for an attorney to provide necessary legal advice to the Insured Entity to evaluate the Insured Entity's legal obligations in connection with an actual or reasonable suspected Cyber Event; and B. for a computer security expert, or experts, to determine the existence, cause and scope of a Cyber Event as well as the costs to contain an ongoing Cyber Event, including the cost to retain a PCI Forensic Investigator if required by a written agreement between the Insured Entity and a financial institution, credit or debit card company, credit or debit card processor, merchant bank or any other entity offering or providing merchant card transaction processing or payment gateway services to the Insured Entity. The Deductible shall be borne by the Named Insured. In the event that this Policy provides coverage for Loss in excess of the limits available under other insurance, then the Insurer shall recognize payment by the Insured Entity of any retention or deductible applicable to such other insurance against the Deductible. Vill. NOTICE REQUIREMENTS A. The Named Insured must give the Insurer written notice of any Claim as soon as practicable, but in no event later than: (i) 60 days after the end of the Policy Period; or (ii) the expiration of any applicable Extended Reporting Period. Notice must be provided through the contacts listed in Item 10. of the Declarations. All notices of Claims must provide the following information: the potential claimant(s) by name or description, the names of the Insureds involved, the time, date, location and the description of the specific incident which forms the basis of the Claim including the nature of the potential Damages arising from such specific Claim or incident, the circumstances by which the Insured first became aware of the specific Claim, and the reason the Insured reasonably believes the subject Claim is likely to trigger coverage under this Policy. B. With respect to Breach Costs, the Named Insured must notify the Insurer of any actual or reasonably suspected Cyber Event as soon as practicable after discovery by the Insured but in no event later than 60 days after the end of the Policy Period. Notice may be provided to the Crum & Forster Cyber Response Team shown in Item 11. of the Declarations. Otherwise notice must be provided through the contacts listed in Item 10. of the Declarations. Notice of an actual or reasonably suspected Cyber Event in conformance with this paragraph will also constitute notice of a circumstance that could reasonably be the basis for a Claim. C. With respect a Cyber Extortion Threat, the Named Insured must notify the Insurer via the email address listed in Item 10. of the Declarations as soon as practicable after discovery of a Cyber Extortion Threat but in no event later than 60 days after the end of the Policy Period. The Named Insured must obtain the Insurer's consent prior to paying any ransom or demand related to a Cyber Extortion Threat. D. With respect to any other First Party Loss or a loss from an eCrime Event, the Named Insured must notify the Insurer through the contacts listed in Item 10. of the Declarations as soon as practicable after discovery of the Cyber Event or eCrime Event. The Named Insured will provide the Insurer a proof of First Party Loss or TCM-POL-001 (01/19) Page 12 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 financial loss under the eCrime Loss Coverage. All loss described in this paragraph must be reported, and all proofs of loss must be provided, to the Insurer no later than six months after the end of the Policy Period unless the Insurer has agreed in writing to extend this deadline. E. Any Claim arising out of a Loss that is covered under Coverages D., Breach Costs, E., eCrime Loss or F., First Party Loss, and that is reported to the Insurer in conformance with paragraphs B., C. or D. above will be considered to have been made during the Policy Period. F. With respect to any circumstance that could reasonably be the basis for a Claim, the Named Insured may give written notice of such circumstance to the Insurer through the contacts listed in Item 10. of the Declarations. Such notice must include: 1. the specific details of the act, error, omission or event that could reasonably be the basis for a Claim; 2. the injury or damage which may result or has resulted from the circumstance; and 3. the facts by which the Insured first became aware of the act, error, omission or event. If such notice that meets the requirements outlined above is made during the Policy Period, then any subsequent Claim made against the Insured arising out of any circumstance reported to the Insurer will be considered to have been made at the time written notice complying with the above requirements was first given to the Insurer. IX. EXTENDED REPORTING PERIOD As a condition precedent to obtaining an Automatic Extended Reporting Period (AERP) or an Optional Extended Reporting Period (OERP), the full premium of this Policy, premium for any endorsements, and payment of Deductibles must have been paid in full. Neither the AERP nor the OERP reinstate or increase the Limits of Liability. Neither the AERP nor the OERP extend the Policy Period or change the scope of coverage afforded by this Policy. A. Automatic Extended Reporting Period If the Insurer or Named Insured cancel or non-renew this Policy for any reason other than non-payment of premium, non-payment of Deductible, non-compliance with any terms and conditions of this Policy or fraud or material misrepresentation, then the Named Insured shall be entitled to an AERP of 60 days from the date of Policy expiration or cancellation to report Claims in writing to the Insurer which are first made against the Insured during the AERP and which arise from a Technology/Professional Error or a Cyber Event that first occurs before the end of the Policy Period or from Multimedia Material first disseminated before the end of the Policy Period. If the OERP in subsection B. below is purchased, then this AERP shall be included within such OERP and will not further extend such OERP. B. Optional Extended Reporting Period If the Insurer or Named Insured cancel or non-renew this Policy for any reason other than non-payment of premium, non-payment of Deductible, non-compliance with any terms and conditions of this Policy or fraud or material misrepresentation, then the Named Insured shall be entitled to purchase an OERP from the options below. If elected, the OERP will begin on the date the Policy expires or is cancelled and would entitle the Insured to notify the Insurer in writing of Claims which are first made against the Insured during the OERP and which arise from a Technology/Professional Error or a Cyber Event that first occurs before the end of the Policy Period or from Multimedia Material first disseminated before the end of the Policy Period. C. OERP Options 1. 12 months for a premium not to exceed 100% of the annual premium; 2. 24 months for a premium not to exceed 150% of the annual premium; or 3. 36 months for a premium not to exceed 175% of the annual premium. D. In order to purchase the OERP, the Named Insured must provide the Insurer with written notice of its intention to do so no later than 30 days after the expiration or cancellation date of this Policy and must include full payment of premium for the OERP at that time. The entire OERP premium is fully earned and non-refundable as of the date the Named Insured notifies the Insurer of its intent to purchase the OERP and full payment must be made at that time for the OERP to apply. TCM-POL-001 (01/19) Page 13 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 X. OTHER CONDITIONS A. Cooperation The Named Insured shall immediately send the Insurer copies of all demands, notices, summonses or legal papers received in connection with a Claim or Loss. The Insured must do whatever is necessary to secure and affect any rights of indemnity, contribution or apportionment that the Insured may have. The Insured shall cooperate with counsel and the Insured shall refrain from discussing any Claim or Cyber Event with anyone other than counsel retained to represent the Insured or the Insurer's representatives. All Insureds must fully assist and cooperate with the Insurer in the conduct, defense, investigation, negotiation and settlement of any Claim or Loss. At the Insurer's request, the Insured must submit to an examination under oath, provide the Insurer with written statements as requested by the Insurer, attend meetings and negotiations; and produce and make available all information, records, documents and other materials which the Insurer deems relevant to the Claim or Loss. As respects any Claim, the Insured must attend hearings, depositions, proceedings, trials and appeals; and assist the Insurer in affecting settlements, securing and giving evidence and obtaining the attendance of witnesses, and pursuing or enforcing any right of contribution or indemnity against a person or entity who may be liable to any Insured. Except as otherwise provided in Section II., Defense and Settlement of Claims, Part A., no Insured will, except at its own cost, admit liability, settle a Claim, incur any expense to investigate a Claim, retain attorneys, incur Claims Expenses, assume any other obligation or incur any other expense with respect to a Claim without the Insurer's prior written consent. Compliance with a statute or regulation that requires notice to government authorities, regulatory authorities or to persons whose personal information may have been accessed by an unauthorized individual, will not be considered an admission of liability for purposes of this clause. B. Due Dispatch The Insured Entity shall make every reasonable effort to restore operations as quickly as possible after a Cyber Event. If the Insured Entity does not resume operations, or does not resume operations as quickly as possible, the Insurer may reduce the payment of First Party Loss to the amount of First Party Loss based on the length of time it would have taken to resume operations as quickly as possible. C. Action Against the Insurer and Bankruptcy 1. No action shall be taken against the Insurer unless, as a condition precedent thereto, the Insureds shall have fully complied with all the terms and conditions of this Policy, nor until the amount of the Insured's obligation to pay Damages for any Claim shall have been fully and finally determined either by judgment against the Insured or by written agreement between the Insureds, the claimant, and the Insurer. 2. Nothing contained herein shall give any person or entity any right to join the Insurer as a party to any Claim against the Insureds to determine their liability. Nor shall the Insurer be impleaded by the Insureds or their legal representative in any Claim. 3. Bankruptcy or insolvency of the Insured or of the estate of the Insured shall not relieve the Insurer of its obligations nor deprive the Insurer of its rights or defenses under this Policy. D. Cancellation and Nonrenewal 1. This Policy may be canceled by the Named Insured by returning the Policy to the Insurer or its authorized representatives, or the Named Insured can cancel this Policy by written notice to the Insurer, stating at what future date cancellation is to be effective. If the Named Insured cancels, earned premium shall be computed using the customary short rate table. Provided, however, the premium shall be deemed fully earned if any Claim or Loss or other circumstance that could reasonably be the basis for a Claim or Loss is reported to the Insurer on or before the date of cancellation. 2. The Insurer can cancel the Policy by written notice to the Named Insured, at the address listed in Item 1. of the Declarations. The Insurer will provide written notice at least 30 days before cancellation is to be effective TCM-POL-001 (01/19) Page 14 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 and the earned premium will be computed pro-rata. However, if the Insurer cancels because the Named Insured has failed to pay a premium or Deductible when due, only 10 days written notice of cancellation will be required. 3. This Policy will terminate on the effective date of the cancellation. Return of unearned premium is not a condition of cancellation. Unearned premium will be returned as soon as practicable. 4. The Insurer will not be required to renew this Policy upon its expiration. If the Insurer elects not to renew this Policy, the Insurer will mail to the Named Insured, at the address listed in Item 1. of the Declarations, written notice of nonrenewal at least 30 days prior to the expiration date of this Policy. Any offer of renewal on terms involving a change of Deductible, premium, Limit of Liability, or other terms and conditions shall not constitute, nor be construed as, a failure or refusal by the Insurer to renew this Policy. 5. Proof of mailing of any notice of cancellation or nonrenewal shall be sufficient proof of notice. E. Assignment of the Insured's Interest The interest of the Insured under this Policy is not assignable to any other person or organization, except with the Insurer's prior written consent. F. Subrogation If any payment is made under this Policy and there is available to the Insurer any of the Insured's rights of recovery against any other party, then the Insurer will maintain all such rights of recovery. The Insured will do whatever is reasonably necessary to secure such rights and will not do anything after an incident or event giving rise to a Claim or Loss to prejudice such rights. If the Insured has waived its right to subrogate against a third party through written agreement made before an act, incident or event giving rise to a Claim or Loss has occurred, then the Insurer will waive its rights to subrogation against such third party. Any recoveries will be applied first to subrogation expenses, second to Loss paid by the Insurer, and lastly to the Deductible. Any additional amounts recovered will be paid to the Named Insured. G. Changes Made to this Policy The terms and conditions of this Policy cannot be waived or changed except by specific written endorsement issued by Insurer and made part of the Policy. H. Application The statements contained in the Application, and any and all attachments, constitute the representations of all Insureds and are material. This Policy is issued and continued in force by the Insurer in reliance upon the truth, accuracy and completeness of such representations, which are the basis of this Policy and current as of the date of binding. Upon the binding of coverage, the Application and any and all attachments are incorporated in and form a part of the Policy. No knowledge or information possessed by any Insured shall be imputed to any other Insured, except for material facts or information known to the person or persons who signed the Application. In the event of any material untruth, misrepresentation or omission in connection with any of the particulars or statements in the Application, this Policy shall be void with respect to any Insured who knew of such untruth, misrepresentation or omission or to whom such knowledge is imputed. I. False or Fraudulent Claims If an Insured reports any Claim or Loss knowing such to be false or fraudulent, this Policy shall become void and all insurance coverage hereunder shall be forfeited as to the inception date of this Policy. J. Terms and Conditions of Policy Conformed to Statute Where necessary, the terms and conditions of this Policy will be amended to conform to applicable law. TCM-POL-001 (01/19) Page 15 of 16 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 K. Change in Risk If, during the Policy Period, an Insured is dissolved, sold, acquired by, merged into, or consolidated with another entity such that the Insured is not the surviving entity; or a third party receiver, conservator, trustee, liquidator, rehabilitator or any similar official is appointed for or with respect to the Insured, then coverage under this Policy shall continue in full force and effect until the expiration date or any earlier cancellation or termination date, but only with respect to events, acts or incidents that occur prior to such consolidation, merger or acquisition. L. Named Insured as Agent The Named Insured will be considered the agent of all Insureds, and will act on behalf of all Insureds with respect to the giving of or receipt of all notices pertaining to this Policy, and the acceptance of any endorsements to this Policy. The Named Insured is responsible for the payment of all premiums and Deductibles and for receiving any return premiums. M. Other Insurance 1. With respect to Coverage D., this Policy shall be primary of any other insurance policy. 2. With respect to Coverages A., B., C., E. and F.: all Loss payable under this Policy shall be in excess of and shall not contribute with other existing insurance including, but not limited to, any insurance under which there is a duty to defend regardless of whether any Loss is collectible or recoverable under such other insurance, unless such other insurance is written specifically excess of this Policy. This Policy shall not be subject to the terms or conditions of any other insurance. N. Policy Territory This insurance applies to Claims made and acts, errors or omissions committed, or Loss occurring anywhere in the world except countries or states against which the United States has implemented trade or diplomatic sanctions. O. Economic and Trade Sanctions or Violations of Law Any Loss, Claim, covered event or other transaction or matter which is uninsurable under any act, statute, rule, regulation, ordinance, common law, or other law of the United States of America concerning trade or economic sanctions or export control laws are not covered under this Policy. P. Entire Agreement The Insureds agree that this Policy, including the Application, Declarations and any endorsements, constitutes the entire agreement between them and the Insurer or any of its agents relating to this insurance. TCM-POL-001 (01/19) Page 16 of 16