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HomeMy WebLinkAbout2022-358-E-IT Dept-Parks & Rec and Aging activities software maintenance-Parks & Rec and Aging activities software maintenanceRevised 06/21 NORTH CAROLINA CONTRACT AMENDMENT ORANGE COUNTY THIS CONTRACT AMENDMENT (“Amendment”) is made and entered into this 10th day of August, 2022 by and between ORANGE COUNTY (hereinafter referred to as “County”) and RecTrac, LLC d/b/a Vermont Systems (hereinafter referred to as “Provider”). WITNESSETH: THAT WHEREAS, the County and Provider entered into a contract dated December 7th, 2021, (hereinafter the “Original Agreement”), for the provision of services for the RecTrac and WebTrac applications; and WHEREAS, the County and Provider desire to amend the Original Agreement while keeping in effect all terms and conditions of the Original Agreement not inconsistent with the terms and conditions set forth below. NOW THEREFORE, for and in consideration of the mutual covenants and agreements made herein, the parties agree to amend the Original Agreement as follows: 1. In order to ensure the completion of the Services identified in the term of the Original Agreement is amended to reflect an end date by which all Services shall be completed of 6/30/2024. 2. Exhibit A to the Original Agreement is amended by adding the following tasks and services to the Services to be provided by the Consultant: Addition of the Brochure module, addition of the SMS module, technical support for brochure and SMS module. 3. Article 5, Section a is amended to reflect a maximum payable not-to-exceed amount of $32,303.00 (over 3 years) ($28,833.00 original contract + Activity Brochure Interface $1,080.00 + SMS Text Messaging $2,390.00) (See Attachment(s) A1 and A2). 4. Except for the changes made herein, the Original Agreement shall remain in full force and effect to the extent it is not inconsistent with this Amendment. In the event there is a conflict between the terms of the Original Agreement and the terms of this Amendment, this Amendment shall control. IN TESTIMONY WHEREOF, this Amendment has been executed by the parties hereto, as of the date first above written. ORANGE COUNTY PROVIDER ______________________________ __________________________________ Bonnie Hammersley Patrick Hayden County Manager President DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 8/10/20228/11/2022 Revised 06/21 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: IT Amount: $32,303.00 (over 3 years) Purpose: Parks & Rec and Aging activities 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 10 August 2022 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 pro ject has not been initiated prior to execution of the agreement: Department Director’s Signature ________________________________________ Date: ________ Agreements for emergency services or repair are not subject to the above affirmation. If servic es 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 specifications: Office of the Chief Information Officer___________________________________ Date: ________ Risk Management This agreement is approved for sufficiency of insurance standards, specifications, and requirements: Office of the Risk Management Officer ___________________________________ Date: _________ Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: Office of the Chief Financial Officer ____________________________________ Date: _________ Legal Services This agreement is approved as to legal form and sufficiency: Office of the County Attorney __________________________________________Date: ________ 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:_________ DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 8/10/2022 8/10/2022 8/10/2022 8/11/2022 8/11/2022 Revised 06/21 dept req 11/12/21 1 [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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 2 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 3 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 7/1/22. 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 4 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 5 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 6 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.orangecountync.gov/departments/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 Agr eement 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 7 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 Pl Hillsborough, NC 27278 Essex Junction, VT 05452 [SIGNATURE PAGE TO FOLLOW] DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 8 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: By: _________________________________ Bonnie Hammersley, County Manager By: __________________________________ Scott Strong, President Printed Name and Title DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 12/7/202112/10/2021 DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Revised 06/21 dept req 11/12/21 9 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, Appro ved 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 execution of the agreement: Department Director’s Signature ________________________________________ Date: ________ 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 specifications: Office of the Chief Information Officer___________________________________ Date: ________ Risk Management This agreement is approved for sufficiency of insurance standards, specifications, and requirements: Office of the Risk Management Officer___________________________________ Date: _________ Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: Office of the Chief Financial Officer ____________________________________ Date: _________ Legal Services This agreement is approved as to legal form and sufficiency: Office of the County Attorney __________________________________________Date: ________ 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:_________ DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4 12/7/2021 12/9/2021 12/9/2021 12/10/2021 12/10/2021 DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 1 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 TERMS OF SERVICE 1.DEFINITIONS. Capitalized terms used but not otherwise defined in these Terms of Service will have the meaning ascribed to such terms in the Services Agreement or other applicable Addenda. "Addendum" or "Addenda" means a document added to the Agreement containing new or supplemental terms. "Agreement" means the Orange County, NC Services Agreement (No RFP/RFQ) and any attachments, schedules or exhibits referenced therein, which could include the Order Schedule, Privacy Policy, Vermont Systems Terms of Service, Service Level Agreement, Statement of Work, Sub- Merchant Agreement, or any later-signed Addenda. "Billing Period" means the period of time covered by a single recurring dues fee for Services. Unless otherwise noted, a Billing Period will be billed in advance and will cover a period of one (1) year. "Cardholder Data" is a subset of Customer Data and generally includes a Patron's name, billing address, credit card number, expiration date and CVV code. "Confidential Information" means any and all information disclosed by either party to the other which is marked "confidential" or "proprietary" or which the recipient knows or has reason to know is regarded by the disclosing party as such, including information disclosed orally. "Confidential Information" does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release with the disclosing party's prior written authorization; (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure; or (g) is subject to NCGS Chapter 132 Public Records law. "Customer" is a VS customer. The Customer is the individual, business entity, non-profit, military branch, or municipality contracting with us to receive Services as more specifically identified in the Services Agreement. Customer may also be referred to in the Agreement as "you," "your" or "Licensee." "Customer Data" is the content, information or data which you, your End Users and/or your Patrons enter into the Software associated with our Services. Customer Data may include Patron Data, among other types of data. "Effective Date" shall have the meaning as set forth in the Services Agreement. "End Users" are your authorized users of the Software associated with our Services. Those licenses associated with a Customer's concurrent End Users will be listed in the Order Schedule. "Fees" mean any and all fees associated with the use of our Services, including (but not limited to) Software Fees, Hosting Fees, Support Fees, any fees associated with our Payment Services, and/or any fees associated with Professional Services, as well as any other fees or charges permitted by the Agreement. Fees may be recurring, non-recurring, or one-time, as more specifically described in the Order Schedule. "Hardware" means the computer equipment, point-of-sale terminals, or other technical Attachment ADocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 2 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 hardware distributed by us or by a reseller on our behalf. Hardware may contain firmware or software. "Hosting Fees" mean the fees associated with the hosting of Customer Data on our VS-controlled servers and systems. "Initial Term" is the initial term for Services, as described in the Services Agreement. "Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. "Order Schedule" means the schedule in the Agreement which itemizes and describes the Services we are willing to provide to you and any specific fees you are agreeing to pay us for such Services. "Patron(s)" mean(s) the individuals who purchase your products and/or services and who otherwise interact with the Software associated with our Services. Patrons are your customers, clients or members. "Patron Data" means information about Patrons entered into the Software by you, your End Users or your Patrons. Patron Data may include (but is not limited to) personally identifiable information and/or Cardholder Data. "Payment Services" means the payment and billing-related services that we may provide to you under the Agreement. Payment Services may be described in the Order Schedule or in a separate Addendum, and your receipt of Payment Services requires that you enter into a separate Sub- Merchant Agreement with us. "Professional Services" are any professional services provided outside of our initial unconfigured install of the Software associated with our Services. Professional services may include consulting, custom development work, implementation, supplemental or onsite training, remote training, or projects which generally fall outside the scope of the Agreement. Unless otherwise agreed, Professional Services will be documented under a separate Statement of Work and signed by the Parties. "Services" mean any and all of those products and/or services offered by us to you under the Agreement. Services may include products or services related to software, hosting, hardware, implementation, support, training and/or payments. A specific itemization of Services can be found in the Order Schedule. "Services Agreement" means the contract between you and us for Services. The Orange County, NC Services Agreement (No RFP/RFQ), together with any attachments, schedules or exhibits referenced therein, is broadly referred to as the "Agreement" between you and us. "Software" means our proprietary technology software and any and all associated modules, websites, third party integrations and/or mobile applications (if applicable). "Software Fees" mean those fees associated with your access to and use of our Software or any component thereof. We may charge Software Fees monthly, quarterly or annually, as more specifically described in the Order Schedule. "Sub-Merchant Agreement" means our Sub- Merchant Application and Agreement and Payment Service Terms and Conditions, which govern the terms and conditions under which we are willing to provide our Payment Services. "Support Fees" mean those fees associated with our Support Desk, which enables customer support DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 3 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 through live channels like phone and chat. We may charge Support Fees monthly, quarterly or annually, as more specifically described in the Order Schedule. "Renewal Term" means the period which immediately follows the expiration of the Initial Term, as described in the Services Agreement. "Team" includes VS's employees, officers, directors, owners, attorneys, affiliates or representatives. "Term" means the term for Services and includes both the Initial Term and any Renewal Terms, as applicable. "VS" means RecTrac, LLC d/b/a Vermont Systems and its subsidiaries, successors and assigns. VS's business address is 12 Market Place, Essex Junction, VT 05452. VS may also be referred to in the Agreement as "Licensor," "we," "our," or "us." 2. ACCEPTANCE. You accept the terms of the Agreement when you (a) click-sign your acceptance to an online version of the Services Agreement; (b) sign a hardcopy of the Services Agreement; and/or (c) access the Services or otherwise accept the benefits of Services. You expressly acknowledge that the person accepting the Agreement on your behalf has the proper legal authority to bind you as the Customer. 3. GRANT OF RIGHTS. 3.1 Grant of Rights by VS. Upon the Effective Date, and subject to your timely payment of Fees and remaining in compliance with the Agreement, we grant to you a limited term, worldwide, non- exclusive, non-transferrable, non-assignable license to access and use our Services, including the Software, during the Term solely for the lawful operation of your business. The licensed rights described herein shall be limited to End Users authorized by you to access and use the Software, and your Patrons who have a legitimate right to access and use your products and/or services. The licensed rights conferred herein do not constitute a sale and do not convey to you or any third party any right of ownership in or to our Services, including the Software, or any of our Intellectual Property Rights. Upon termination of the Agreement for any reason, any rights granted by us to you will automatically and without notice terminate. The method and means of providing the Services shall be under our exclusive control, management and supervision, although we will try to give your specific requests due consideration. Any rights not specifically granted under the Agreement are expressly reserved. 3.2 Grant of Rights by Customer. Upon the Effective Date, and subject to our remaining in compliance with the Agreement, you grant to us a limited term, worldwide, non-exclusive license to access and use your Customer Data (including any Patron Data, as applicable) to deliver, monitor and maintain the Services in accordance with the Agreement. Any rights not specifically granted under the Agreement are expressly reserved. 3.3 Excess Use. We will provide you with the number of authorized End User licenses as set forth in the Order Schedule to access and use the Software. You shall have access to functionalities in the Software that can generate reports indicating the number of authorized End Users accessing the Software at any given time. In the event that the number of concurrent End Users exceeds the number of allocated licenses described in the Order Schedule ("Excess Use"), we will notify you by email about such Excess Use and, if you do not reduce the Excess Use within 30 days of such notice, you will be required to pay for any Excess Use with additional licenses, which shall be described in a new invoice and which will automatically update the Order Schedule. 3.4 Prohibited Use. You shall not use our Services in violation of the law, whether local, state or federal (including but not limited to the CAN-SPAM Act, the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, the Americans with Disabilities Act, or any consumer protection statute); to intentionally bypass a security mechanism in the System(s); to reverse-engineer DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 4 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 the System(s), or any component thereof, regardless of the reason why; in a way that adversely impacts the availability, reliability or stability of the System(s), or any component thereof; to intentionally transmit material using the System(s) which contains viruses, Trojan horses, worms or some other harmful computer program; to send unsolicited advertising, marketing or promotional materials, whether by email or text, without the recipient's legally-valid consent; to commit fraud; to transmit material that infringes on the intellectual property right of others; to transmit material that is harassing, discriminatory, defamatory, vulgar, pornographic, or harmful to others; or in violation of this Agreement. Violation of this Prohibited Use policy may result in immediate suspension or discontinuation of Services, or legal action which could result in civil damages or criminal punishment. 4. TERM; TERMINATION. 4.1 Term. You will be obligated to the Term as described in the Services Agreement, including any auto-renewal provisions. 4.2 Termination for Cause. Prior to expiration of the Initial Term, either you or we may terminate the Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) if the other party dissolves or ceases to do business in the ordinary course. If our termination of the Agreement is for cause, then you shall remain liable for any Fees covering the remainder of the Initial Term, or a Renewal Term, as applicable, after the effective date of such termination. Termination for cause will not preclude the non-breaching party from exercising any other rights or remedies permitted by law. 4.3 Termination for Convenience (Without Cause). Both parties shall have a right to terminate the Agreement for convenience (meaning without cause) at any time during the Term with a 30-day written notice. 4.4 Termination Notice. For termination to be considered effective, you must send your termination notice in writing to Vermont Systems, Inc. at 12 Market Place, Essex Junction, VT 05452. 5. FEES; PAYMENT TERMS. 5.1 Payment of Fees. You agree to pay us all Fees permitted by the Agreement. Fees for specific Services are described in the Order Schedule and may be set up to bill quarterly or annually, as we and you may decide. All Fees are based on Services provided, not on your actual usage. Except as permitted by the Agreement, all Fees paid are non- refundable. 5.2 Fee Commencement. Payment for the software subscription and hosting is invoiced and due in full when the initial out of the box, base software URL is emailed to you. This typically occurs less than 30 days after the project "kickoff" date. 5.3 Due Date; Late Fees; Interest. Payment is due within 30 days from the date you receive our invoice (the "Due Date"). 5.4 Error Reporting. Please report any errors that you see on an invoice immediately. 5.5 COLT Increase. After the Initial Term, all Fees shall be subject to a cost of living and technology ("COLT") enhancement increase not to exceed five percent (5%) of then current Fees. VS reserves the right to apply the COLT enhancement to any Fees at the start of each Renewal Term, in its sole and absolute discretion. 5.6 Breach for Non-Payment of Fees. Payment not made within 30 days of the Due Date will result in an automatic breach of the Agreement and start the clock on a 20-day period in which to cure. If payment is still not received by the 51st day after the scheduled Due Date, we reserve the right to suspend Services until all outstanding Fees are DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 5 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 paid. Continued non-payment of Fees more than 60 days after the Due Date will result in a default under the Agreement. In the event of default, all payments otherwise due to us under the Agreement will be accelerated and will be considered due and payable by you immediately, as of the date of default. 5.6. Taxes. If you are a tax-exempt organization, then this provision does not apply. We have no obligation to pay your taxes under any circumstances. Taxes may include value-added tax (VAT), a goods and service tax (GST), a sales tax, or 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. We are obligated to comply with all valid tax liens or levies associated with your business. If we must pay Taxes on your behalf, you agree to indemnify us for any such payments within 30 days from your receipt of a special tax-related invoice. 6. MODIFICATIONS. 6.1 Changing the Terms of Service. We reserve the right to modify these Terms of Service by posting a revised Terms of Service on our website and sending you notice that they have changed to your email address on recordand be required to, ask you to review and to explicitly agree to or reject a revised version of the Terms of Service. In such cases, modifications will become effective at the time you sign your consent to the modified Terms of Service. In cases where we do not ask for your explicit consent to a modified version of the Terms of Service, but otherwise provide notice as set forth above, the modified version of the Terms of Service will become effective 30 days after we have posted the modified Terms of Service and provided you with notification. Your continued use of Services following that period constitutes your acceptance of the Terms of Service as modified. If you do not agree with the changes to the modified Terms of Service, you are required to notify us of such within the same 30-day period and we will have the sole right to decide whether to revert to the original Terms of Service or insist on the changed Terms of Service and permit you to terminate the Agreement without cause and without penalty. 6.2 Changing the Order Schedule. You may add or remove Services during the Term at any time provided that we agree to such changes in writing. 6.3 Other Changes to the Agreement. Except as otherwise described in this Section, no modification of the Agreement will be binding unless in writing and manually signed by an authorized representative of the parties. 7. CUSTOMER DATA. 7.1 Customer Data Generally. You represent and warrant that you own or have appropriate rights to all of your Customer Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or rights to use of all Customer Data (including Patron Data, as applicable). Except as specifically provided for in the Agreement, we shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of your Customer Data. 7.2 Hosting Obligations. Hosting of Customer Data on VS-controlled servers and systems does not come standard with all Agreements; Customers must specifically contract for hosting services and pay all associated Hosting Fees. IF VS CUSTOMER DOES NOT SELECT VS's HOSTING SERVICES, AND INSTEAD CHOOSES TO ASSUME THE DUTY OF HOSTING ITS OWN CUSTOMER DATA ON ITS OWN SYSTEMS AND SERVICES, THEN AS SUCH, NO LIABILITY SHALL ATTACH WHERE WE HAVE NO DUTY WITHIN THIS CONTRACT OR AT COMMON LAW. WE MAKE NO WARRANTIESASSOCIATED WITH SUCH CUSTOMER DATA OR CUSTOMER’S OWN HOSTING ACTIVITIES, INCLUDING (BUT NOT LIMITED TO) INCIDENTS RESULTING IN data breach, MISAPPROPRIATION OF CUSTOMER DATA, VIOLATIONS OF PRIVACY RIGHTS, AND/OR DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 6 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 ANY OTHER SITUATION RESULTING IN DAMAGES OR MONETARY LOSS ARISING OUT OF OR RELATING TO THE HOSTING OR STORAGE OF CUSTOMER DATA. If Customer chooses VS for hosting services, and we actually store Customer Data on a VS-controlled system or service, then, in addition to those terms and conditions described in our Privacy Policy, and provided Customer remains current in its payment of Hosting Fees and otherwise compliant with the Agreement, then we make the following limited representations and warranties with respect to our hosting services: we will, at all times during the Term of the Agreement: (a) maintain a comprehensive data security program which includes reasonable and appropriate technical, organizational and security measures against the destruction, loss, unauthorized access or alteration of Customer Data (including Patron Data, as applicable) which measures will be no less rigorous than the accepted security standards for similarly situated companies in the industry; and (b) provide our hosting services in a good and workmanlike manner; and (c) offer hosting services which, to the best of our knowledge, comply with applicable local, state or federal laws. The limited representations and warranties described herein shall be subject to any other limitations of liability described by the Agreement. 7.3 Return of Customer Data. If we are providing you with hosting services, then you shall have access to your Customer Data (including Patron Data, as applicable) for the duration of the Term, subject to the terms and conditions of the Agreement. Upon termination of the Agreement, or where you properly cancel hosting services during the Term, your access to any VS-hosted Customer Data will end immediately on the same day in which you cancel or terminate the Agreement; however, per the requirements of NCGS Chapter 132 Public Records law, you will have continued access to your Customer Data for the limited purpose of transferring your Customer Data to your own systems or servers. . Notwithstanding the foregoing, we reserve the right to maintain a copy of any other record, book, file and other data, as specified in the Agreement and in such detail as shall properly substantiate claims for payment, for a minimum of one (1) year beginning on the first day after the Agreement is properly terminated, or for such longer period as may be necessary for the resolution of any dispute, negotiation, audit, or other inquiry involving the Agreement. 8. SPLASH PAGE. We assume no duty to maintain your WebTrac splash page and make no warranties regarding compliance with Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1194, the Americans with Disabilities Act, or any other applicable federal or state laws or regulations relating to accessibility for persons with disabilities. As such, no liability shall attach where we have no duty within this contract or at common law. 9. HARDWARE. We shall have no obligation to provide you with the Hardware necessary to access our Services or use our Software. Any Hardware used must comply with our minimum system requirements. If we choose to provide you with Hardware, a description of such Hardware and pricing will be described in your Order Schedule. In the absence of specified pricing, we may provide you with Hardware at our then-current market rates. Full payment for Hardware and any related third-party software is due following delivery. The verification process must be completed so that all payments can be made within 30 days of delivery. Any VS-supplied Hardware will include warranties from the manufacturer or distributor, as applicable, for a specific period. We offer no warranties on Hardware. 10. INSTALLATION; TRAINING. We will provide an initial unconfigured install of the Software as part of the Fees you pay for Services. Subsequent installations or software configuration will be subject to additional charges on a "time and materials" basis at our standard rates. Based upon on a mutually agreed implementation plan, we will provide training and setup services at our standard DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 7 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 rates (plus expenses - if any incurred). Implementation and Training may be performed remotely or on-site. We also offer access to online training materials, including: user reference manuals, installation planning guides, report listings, "FasTrac" how to videos, online help, and a sample training database with tutorials. You may request follow-up or additional trainings at our then-current hourly rates, and subject to scheduling availability. Additional training will occur online (remote). 11. CUSTOMER SUPPORT. 11.1 Standard Support. All Customers receiving our Services will receive "Standard Support" services, which includes online support and access to a VS support documentation library. Online support includes access to an online knowledge database, support videos accessible through the VS website, e-learning content and the ability to participate at no additional cost in periodic live webinars offered from time to time by VS. The VS support documentation library is accessible through the VS website and includes access to user reference manuals, installation planning guides, report listings, online help and a sample training database with tutorials. Customers can print any number of copies needed to train staff and manage their business operation. Customers can access standard support channels online, 24 hours a day, 7 days a week. VS's standard support services are included with Customer's payment of Software Fees. 11.2 Premium Support (Support Desk). Customers choosing our "Premium Support" service will receive access to our award-winning "Support Desk," which, in addition to Standard Support, makes certain channels available to Customers like phone and chat support with a live VS support agent. Customers receiving Premium Support shall be responsible for paying Support Fees as described in the Order Schedule. The Support Desk is open for call-in phone support five (5) days a week, Monday through Friday, 8 am ET to 8 pm ET; real-time chat support is available five (5) days a week, Monday through Friday, 8 am ET to 5 pm ET. Premium Support includes online portal case creation, email assistance and call-back services, and Customer ability to choose remote-in live support services via Zoom or Microsoft Teams. 11.3 Customer Support Not Provided. Regardless of whether you are a Standard Support or Premium Support Customer, we do not provide the following 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, 24 hours, 7 days a week; (b) travel and out-of- pocket expenses for installation and on-site training services; (c) telephone support related to computer hardware, operating systems, networking, reinstallation and configuration of application software (including VIC), point-of-sale hardware, and access control hardware; (d) telephone support and/or training as a substitute for on-site training or classroom training; (e) VS application software WAN access configuration; (f) customized discovery, custom programming, development, and maintenance; (g) interfaces to export or import data from or to other application software databases; and (h) extended dedicated support to implement or change certain functions, such as switching from cash to accrual accounting or customizing WebTrac splash page; (i) performing periodic VS software updates if database is on- premises; (j) purchase installation or configuration of SSL certificates for on-premises configurations; and (k) data entry or database management. VS may provide some of these Services under a separate engagement, the terms of which should be agreed upon and documented in a signed Statement of Work. 11.4. Remote Access Authorization. We will provide you with on-going support or updates for the proper functioning of our Services, including the Software, which we can only provide or make available through remote access to your technology systems. By using our Services, or accessing our Software, you expressly authorize us DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 8 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 to access your technology systems remotely for the limited purpose of providing you with any support or updates relevant to our Services. You shall be solely liable for the cost, interoperability, proper functioning, and security of any remote access facilities or methods used by you, and we shall not be deemed to be in violation of our obligations to you, nor in breach of the Agreement, as the result of our inability to remotely access your technology systems. Our right of remote access as described herein shall be deemed a continuing right until such time as the Agreement terminates, for any reason. We agree to use commercially reasonable efforts to comply with any of your published security-related protocols when remotely accessing your technology systems. 12. PAYMENT SERVICES. To be eligible for Payment Services, you must complete our Sub-Merchant Application and submit it to VS Company underwriting for approval. Once accepted, your Sub-Merchant Application will convert to a Sub- Merchant Agreement, inclusive of the Sub- Merchant Application and Agreement (SMAA) and our Payment Service Terms and Conditions, which shall be considered part of the Agreement. 13. PROFESSIONAL SERVICES. We reserve the right to provide you with an estimate of fees for Professional Services based on the approximate number of hours we think will be reasonably required to complete an engagement, multiplied by a fixed hourly rate. If we underestimate the fees for Professional Services based on work actually performed, we will obtain pre-approval prior to you being responsible for any cost overruns at the same hourly rate. We will invoice you separately for cost overruns. To help you track and plan for any cost overruns, we will track our actual Professional Service hours and, upon written request, provide you with a weekly time report. Any specific details of an engagement for Professional Services should be described in a Statement of Work and signed by the parties. Any fees for Professional Services will be considered part of the Fees owed under the Agreement. 14. CUSTOM DEVELOPMENT. While we welcome any suggestions or comments you might have about how we can improve our products and services, we do not custom develop our Services (including the Software) to suit the business needs of any particular client. We will consider all suggested improvements to the Services, and, as we determine, will incorporate any approved items to our development roadmap. If there is a feature or functionality that you would like to see added to our Services, and you would like the project completed on a certain timeline, you can make a custom development request and, based on our staffing and other considerations, we will scope the project and provide you with a written quote which you can accept or reject. Custom development work will be considered a separate engagement for Professional Services and will be billed outside of the Agreement. Custom development work shall not be considered work-for-hire. We will own and control any product outcome of the engagement and we reserve the right to incorporate any new feature or functionality into our larger product or service offerings. 15. OWNERSHIP RIGHTS. 15.1 What Belongs to VS. We reserve all title and interest to our Intellectual Property Rights. We alone own our Intellectual Property Rights, in addition to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any other party relating to our Services. In addition, we retain all rights, title and interest in and to our Software and any splash page designs that we may create and/or maintain on your behalf and license to you. The Vermont Systems™, VS™ and VS Payments™ names and logos are registered trademarks of Vermont Systems and no right or license is granted to use them without our express written permission. 15.2 What Belongs to Customer. With the exception of Patron Data (which remains the property of individual Patrons), you reserve all rights, title and interest to your Customer Data. You own all rights, title and interest to Customer DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 9 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 trademarks, service marks and other intellectual property. 16. CONFIDENTIALITY. A party (the "Receiving Party") shall not disclose the disclosing party's (the "Disclosing Party") Confidential Information to any person or entity, except to the Receiving Party's employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations under the Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; (b) to establish a party's rights under this Agreement, including to make required court filings; or (c) in order to comply with NCGS Chapter 132 Public Records law, provided that the party making the disclosure pursuant to the law shall first make reasonable efforts to have given written notice to the other party to enable the other party reasonable time to obtain a protective order. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire one year after the termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 17. PROTECTION OF EDUCATIONAL INFORMATION. We understand and acknowledge that in the performance of our Services, we may have access to private and confidential information regarding students, parents, guardians, faculty, donors, employees, staff, alumni (collectively, "Educational Information") that may be covered by the federal Family Educational Rights and Privacy Act ("FERPA"), or similar state laws. We will not disclose, copy, or modify any Educational Information without your prior written consent, or unless otherwise required by law. We will notify you if we become aware of a possible unauthorized disclosure or use of Educational Information. 18. LIMITED WARRANTIES. We represent and warrant that (a) we own the appropriate rights to license and/or sublicense our Services (including the Software); (b) the Services (including the Software) will conform with any then-available published specifications; (c) to the best of our knowledge, our Software is free of any viruses, Trojan horses, malware, spyware, ransomware or other harmful code; and (d) that there have been no violations of copyrights or patent rights in connection with the Services (including the Software) offered. We do not warrant that the Services (including the Software) will be entirely free from defect or error. EXCEPT AS SPECIFICALLY STATED HEREIN, THE SERVICES (INCLUDING THE SOFTWARE) ARE BEING PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. No advice or information, whether written or oral, obtained from us, or any member of our Team, will create any warranty not expressly made. If you are a California resident, you waive California Civil Code § 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 19. LIMITATIONS OF LIABILITY. The following limitations of liability are applicable to the extent allowable under North Carolina Law: 19.1 EXCLUSIVE REMEDY. TO THE EXTENT ALLOWABLE UNDER NORTH CAROLINA LAW, YOUR EXCLUSIVE REMEDY FOR ANY FAILURE OF OUR OBLIGATIONS UNDER THE AGREEMENT SHALL BE YOUR RIGHT TO TERMINATE THE DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 10 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 AGREEMENT FOR CAUSE AND WITHOUT PENALTY, AND ANY CREDITS WHICH MAY BE DUE UNDER AN APPLICABLE SERVICE LEVEL AGREEMENT (IF A SERVICE LEVEL AGREEMENT IS OFFERED AS PART OF THE AGREEMENT). 19.2 EXCLUDED DAMAGES. TO THE EXTENT ALLOWABLE UNDER NORTH CAROLINA LAW, IN NO EVENT SHALL WE BE LIABLE OR RESPONSIBLE TO YOU FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICES OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. 19.3 DAMAGES CAP. TO THE EXTENT ALLOWABLE UNDER NORTH CAROLINA LAW, IN NO EVENT SHALL OUR LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCES EXCEED THE AMOUNT OF FEES YOU ACTUALLY PAID TO US FOR SERVICES IN THE TWELVE (12) MONTH PERIOD DIRECTLY PRIOR TO THE ACTION GIVING RISE TO ALLEGED LIABILITY. 19.4 TIME LIMITATION. TO THE EXTENT ALLOWABLE UNDER NORTH CAROLINA LAW, YOU FURTHER AGREE THAT ANY CLAIM WHICH YOU MAY HAVE AGAINST US MUST BE FILED WITHIN TWO (2) YEARS AFTER SUCH CLAIM AROSE, OTHERWISE THE CLAIM SHALL BE PERMANENTLY BARRED. 19.5 MATERIALITY. TO THE EXTENT ALLOWABLE UNDER NORTH CAROLINA LAW, THE LIMITATIONS IN THIS SECTION ARE A MATERIAL BASIS OF THE BARGAIN, AND THE TERMS OF THE AGREEMENT WOULD BE DIFFERENT WITHOUT SUCH LIMITATIONS. THE LIMITATIONS IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. MULTIPLE CLAIMS WILL NOT ENLARGE ANY DAMAGES CAP DESCRIBED HEREIN. 20. INDEMNIFICATION. To the extent allowable under law including prohibitions by Article V, Section 4(3) of the North Carolina Constitution and applicable case law precedent, you shall indemnify and defend us (including any member of our Team) and hold us harmless against any claim, suit, demand or proceeding ("Claim") that arises from your actions, your use or misuse, of the Services (including, but not limited to, the Software); your breach of the Agreement or these Terms of Service; or your infringement on someone else's rights, including but not limited to, third party intellectual property rights. Our indemnity rights shall include all costs associated with the Claim or Claims, including attorneys' fees, court costs, dispute resolution costs, and/or fees associated with collection. 21. DISPUTE RESOLUTION. Many concerns can be resolved by calling us at (877) 883-8757. If a dispute cannot be resolved informally, this Dispute Resolution provision explains how claims (whether by you against us, or by us against you) will be resolved. 21.1 Definition. "Claim" means any current or future claim, dispute or controversy relating in any way to our Agreement. Claim includes (a) initial claims, counterclaims, cross-claims and third-party claims; (b) claims based upon contract, tort, fraud, statute, regulation, common law and equity; and (c) claims by or against any third party using or providing any product, service or benefit in connection with our Agreement or the Software. 21.2 Claim Notice. Before beginning a lawsuit or mediation, you and we agree to send a notice (a "Claim Notice") to each party against whom a Claim is asserted. The Claim Notice will give you and us a chance to resolve our dispute informally or in mediation. The Claim Notice must describe the Claim and state the specific relief demanded. Notice to you may be sent to your current mailing address or email address on file. You must provide your name, address and phone number in your DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 12 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 22. NOTICES; GOVERNING LAW; JURISDICTION. 22.1 General. Who you are contracting with under this Agreement, who you should direct notice to under this Agreement, what law will apply in any lawsuit arising out of this Agreement, and which court can adjudicate any such lawsuit to this Agreement are as follows: Who you are contracting with: RecTrac, LLC d/b/a Vermont Systems Notices to be sent to: 12 Market Place Essex Junction, VT 05452 legal@vermontsystems.com Governing law is: North Carolina Courts having exclusive jurisdiction are: State courts of North Carolina, or a U.S. District Court for North Carolina 22.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to you shall be addressed to the designated contact person identified in the Services Agreement at the email address or physical address listed. 22.3 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. 22.4 Waiver of Jury Trial. Reserved. 23. GENERAL PROVISIONS. 23.1 Privacy Rights. You are required to comply with our Privacy Policy, which may be revised from time to time upon notice and affirmative acceptance by County, and which are expressly incorporated into the Agreement. 23.2 Minimum System Requirements / Interoperability. It is your responsibility to ensure your computer systems, internet connections, IT infrastructure, peripherals, systems, servers, mobile devices and/or workstations comply with the minimum system requirements necessary to receive our Services. We shall not be responsible for any internet speed or connectivity issues at your location, or other problems related to your technology equipment, including third party internet service or your IT infrastructure. You shall be required to comply with our technical specifications. 23.3 Reference. You agree that, within 30 days of 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. Any reference shall be removed upon termination or conclusion of this agreement. 23.4 Independent Contractor Relationship. Our legal relationship to you is that of an independent contractor. The Agreement does not form a partnership, franchise, joint venture, employment, agency and/or fiduciary relationship between you and us. 23.5 Non-Discrimination Endorsement. We shall not discriminate in our employment practices and will render all Services under the Agreement without regard to race, color, religion, sex, sexual orientation, age, national origin, veteran's status, political affiliation, or disabilities. Specifically, we will abide by the requirements of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, the Vietnam Era Veteran's Readjustment Assistance Act of 1974; 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 County Living Wage Policy. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 13 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 23.6 Export Controls. The Services and any derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on the United States' government denied- party list. Additionally, you shall not permit End Users to access or use the Subscription Services while located in a United States embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), or in violation of any United States' export law or regulation. 23.7 Anti-Bribery. You agree that neither your employees, agents or representatives have received or been offered any illegal or improper bribe, kickback, gift, or thing of value from us, or any member of our Team, in connection with the Agreement. If you learn of any violation of the above restrictions, you agree to promptly notify us. 23.8 Legal Advice. All Professional Services and other information provided to you in the normal course of our business relationship should be considered for informational purposes only and is not to be taken as legal advice. You are advised to speak with your own independent counsel about all matters of a legal nature. 23.9 Waiver; Cumulative Remedies. No failure or delay by either party in exercising any rights under the Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided in the Agreement are in addition to, and not exclusive, of any other remedies of a party at law or in equity. 23.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement in its entirety without your consent, to our affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets not involving one of your direct competitors. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Should you object to the assignment of this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets, you shall have the right to terminate this Agreement for convenience. 23.11 Force Majeure. Neither party shall be in default under any provision of the Agreement or be liable for any delay, failure of performance or interruption in Services (including the Software) resulting, directly or indirectly, from causes beyond our reasonable control, including but not limited to any of the following: earthquake, lightning or other acts of God; fire or explosion; electrical faults; vandalism; cable cut; water; hurricanes; fire; flooding; severe weather conditions; actions of governmental or military authorities; national emergency; insurrection, riots or war; terrorism or civil disturbance; strikes, lock-outs, work stoppages or other labor difficulties; supplier failure; shortage; or telecommunication or other internet provider failure. 23.12 Survivability. Even if you terminate the Agreement with us, the following sections of the Agreement will still apply: Terms of Service Section 7.2 (Hosting Obligations); Section 16 (Confidentiality); Section 17 (Protection of Educational Information); Section 18 (Limited Warranties); Section 19 (Limitations of Liability); Section 20 (Indemnification); Section 21 (Dispute Resolution); Section 22 (Notice; Governing Law; Jurisdiction); Section 23.8 (Legal Advice); Section 23.11 (Force Majeure) and Section 23.16 (Entire Agreement; Priority of Documents). 23.13 Severability. The invalidity or unenforceability of any provision of the Agreement will not affect the validity or enforceability of the other provisions of the Agreement, which provisions will remain in full force and effect. If any provision of this Agreement shall be deemed unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination will alter DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 14 File: VS Terms of Service 04DEC2020-V01 ©RecTrac, LLC All rights reserved. Last Revision: 9/29/2021 such provisions so that it is enforced and will enforce it in its altered form for all purposes contemplated by the Agreement. 23.14 Headings. The bolded headings contained in the Agreement are for convenience of reference only, shall not be deemed to be a part of the Agreement and shall not be referred to in connection with the construction or interpretation of the Agreement. 23.15 Construction. For purposes of the Agreement, wherever the context requires, the singular shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter gender, and vice versa; and "and" shall 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 your agreements with VS may be presented, delivered, stored, retrieved, and transmitted electronically. You must keep us informed of any change in your electronic or mailing address or other contact information. Your electronic signature, including, without limitation clicking "Agree and Continue" or "I Accept" or an action of similar meaning or significance, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business electronically at any time by contacting us and withdrawing your consent. However, any communications or transactions between us before your withdrawal of such consent, will be valid and binding. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 3% 1.000 566.50 1.000 566.50 1.000 566.50 1.000 185.40 1.000 566.50 1.000 412.00 18.000 1,112.40 1.000 795.16 1.000 309.00 1.000 1,122.70 1.000 298.70 1.000 298.70 1.000 504.70 1.000 257.50 1.000 496.46 1.000 618.00 1.000 51.50 600.00 9,328.22$ 3.23% 8,455.37$ -18.63Discount 8474.00 Total Inv Without 2021 Discount Add: Virtual Symposium 1.000 V-PT-IN-ERI-M Credit Card Interface Annual maintenance 600.00 600.00 1.000 T-KP-COI Certificate of Insurance 50.00 50.00 1.000 V-WT-MU-MWT-MMobile Web Trac Workgrp Maintenance 490.00 490.00 1.000 V-WT-MU-AU-M WebTrac Workgroup RecTrac /WebTrac Agents Annual Maintenance. 250.00 250.00 1.000 T-PG-MU-WB-M Progress WebSpeed Trans Svr, Annual Maint.482.00 482.00 1.000 V-WT-MU-AR-M WebTrac Activity Reg Annual Maintenance, 16- 39 Usrs. 290.00 290.00 1.000 V-WT-MU-FR-M WebTrac Facility Reserv, 16-39 Users, Annual Maint. 290.00 290.00 1.000 V-RT-IN-GL-M General Ledger Interface maintenance 300.00 300.00 1.000 V-WT-MU-IS-M WebTrac Internet Software, Incl RT Integration s/w 16-39 Users,Annual MA, 25 Ag 1090.00 1090.00 18.000 V-RT-MU-AU-M RecTrac Add'l User Annual MA Over Two 60.00 1080.00 1.000 T-PG-M Progress Annual Maintenance 772.00 772.00 1.000 V-RT-MU-PS-M POS Inventory-/Inventory/ Tickets M/U Annual MA 550.00 550.00 1.000 V-RT-MU-SA-M RT SystemAdmin. M/U Annual Maintenance 400.00 400.00 1.000 V-RT-MU-PM-M Pass Mgmt Photo-M/U Annual Maintenance (NO Print Pass/ ID Card) 550.00 550.00 1.000 V-RT-MU-PMI-EX Pass Mgmt Ext Integration- Fobs/Existing ID Cards Maintenance 180.00 180.00 1.000 V-RT-MU-AR-M Activity Reg-M/U Annual MA.550.00 550.00 1.000 V-RT-MU-FR-M Facility Res-M/U Annual MA 550.00 550.00 Quantity Item Number Description Unit Price Amount Required Shipped B.O. Bill To: Orange County IT 131 West Margaret Lane Suite 300 Hillsborough, NC 27278 Ship To:Orange County IT 131 West Margaret Lane Suite 300 Hillsborough, NC 27278 Attachment BDocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 11/17/2021 Arthur J.Gallagher Risk Management Services,Inc. 201 E.4th Street,Ste 625 Cincinnati OH 45202 Susan D.Masters,CIC 513-977-3139 susan_masters-oh@ajg.com Continental Insurance Company 35289 CLUBLLC-01 Continental Casualty Company 20443ClubessentialHoldings,LLC 4600 McAuley Place Ste 350 Cincinnati OH 45242-4765 Valley Forge Insurance Company 20508 Ascot Specialty Insurance Company Crum &Forster Specialty Insurance Co 44520 1743106405 C X 1,000,000 X 100,000 5,000 1,000,000 2,000,000 X X X N N 6079684571 11/15/2021 11/15/2022 2,000,000 C 1,000,000 X X Hired PhyDam N N 6079684568 11/15/2021 11/15/2022 Hired PhyDam 75,000 A X X 2,000,000607968460411/15/2021N 11/15/2022 2,000,000 X 10,000 A A XY6079684599 WC679684585 11/15/2021 11/15/2021 11/15/2022 11/15/2022 1,000,000 1,000,000 1,000,000 E B D Prof/Cyber-CM Crime-3rd Party Excess Prof/Cyber-CM TCM101288 652175238 EOXS2110000601-01 3/23/2021 11/15/2021 3/23/2021 3/23/2022 11/15/2022 3/23/2022 Ea Claim/Agg Ea Claim Ea Claim $5,000,000 $1,000,000 $5,000,000 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... Orange County Attn:Risk Management 200 South Cameron Street PO Box 8181 Hillsborough NC 27278 USA DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: CLUBLLC-01 1 1 Arthur J.Gallagher Risk Management Services,Inc.Clubessential Holdings,LLC 4600 McAuley Place Ste 350 Cincinnati OH 45242-4765 25 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/202111/15/202211/15/2021 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 11/15/2021 11/15/202111/15/2022 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 6079684599 11/15/2022 11/15/2021 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/202111/15/2022 6079684599 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 1 of 16 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 Agreement(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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 2 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 3 of 16 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; DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 4 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 5 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 6 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 7 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 8 of 16 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; DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 9 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 10 of 16 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; DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 11 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 12 of 16 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. VIII. 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 13 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 14 of 16 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,theInsured 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 15 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 16 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Explanation of Quote:Activity Brochure Interface - Software Orange County ITPrepared For: Sonia Ensenat, IT Systems Application Manager Contact Email: Contact Name: sensenat@orangecountync.gov Ricci Skitzis (Sales Executive) Toll Free: Email:RicciS@vermontsystems.com 877-883-8757 Prepared By: Contact Phone:919-245-2290 Direct Phone:802-255-2112 Hillsborough, NC Notes: Services (recurring)Qty Unit Price Monthly Price Software Subscription Activity Brochure Interface - Standard †(2)1 $30.00 $30.00 $360.00 Tax:$0.00 Total:$360.00 Services (non-recurring)Qty Unit Price Price Vermont Systems Scheduled Service Cancellation Policy Cancellation Fee Policy - See Footnotes †(3)1 $0.00 $0.00 TOTALS: Services (recurring) (prorated year 1)$360.00 Total:$360.00 For planning purposes, the annual recurring cost will be: $360.00 † Footnotes: 2 Brochure export creates an export file of activity/program data. The layout and content of the data is defined via a user defined dynamic template setup in RecTrac. Training (at standard rates) can be provided for setup of template. 3 Scheduled Service Cancellation Fees: 10% of the price per scheduled block of time/minimum $150.00 How to avoid Cancellation Fees: •Hourly Services – Customer is required to provide notice at least 3 business days prior to the scheduled training. •Multi Day or On-Site Services – Customer is required to provide notice at least 3 weeks prior to the scheduled training. 1www.vermontsystems.com sales@vermontsystems.com Quote Number: QUO-10030-M0T7B3 06/23/2022 Software Pricing is valid for 120 Days Hardware Pricing is Subject to Change Attachment A1DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F Explanation of Quote:SMS Texting Orange County ITPrepared For: Sonia Ensenat, IT Systems Application Manager Contact Email: Contact Name: sensenat@orangecountync.gov Ricci Skitzis (Sales Executive) Toll Free: Email:RicciS@vermontsystems.com 877-883-8757 Prepared By: Contact Phone:919-245-2290 Direct Phone:802-255-2112 Hillsborough, NC Notes: Services (recurring)Qty Unit Price Monthly Price SMS Texting SMS Text Message - Monthly Fee †(3)1 $15.00 $15.00 $180.00 Tax:$0.00 Total:$180.00 Services (non-recurring)Qty Unit Price Price SMS Texting SMS Text Messages †(2)1 $0.05 $0.05 Tax:$0.00 Total:$0.05 Training & Expenses Qty Unit Unit Price Price Training & Setup Services 2.0 Hour $175.00 $350.00 Tax:$0.00 Total:$350.00 TOTALS: Services (recurring) (prorated year 1)$180.00 Services (non-recurring)$0.05 Training & Expenses $350.00 Total:$530.05 For planning purposes, the annual recurring cost will be: $180.00 † Footnotes: 2 Text message/$.05 each NOTE: SMS Texting requires patron to "opt-in" via WebTrac opt in process. Patron opting into to service is a requirment to provide SMS texting. 3 SMS Texting is a monthly service that is currently provided for VS 3.1 Customers. The monthly flat fee of $15.00 allows access to the service, each message is billed at the quoted rate of $.05 per text message. This service will be billed quarterly. NOTE: SMS Texting requires patron to "opt-in" via WebTrac opt in process. Patron opting into to service is a requirment to provide SMS texting. 1www.vermontsystems.com sales@vermontsystems.com Quote Number: QUO-12162-Q4J0P7 07/21/2022 Software Pricing is valid for 120 Days Hardware Pricing is Subject to Change Attachment A2DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 11/17/2021 Arthur J.Gallagher Risk Management Services,Inc. 201 E.4th Street,Ste 625 Cincinnati OH 45202 Susan D.Masters,CIC 513-977-3139 susan_masters-oh@ajg.com Continental Insurance Company 35289 CLUBLLC-01 Continental Casualty Company 20443ClubessentialHoldings,LLC 4600 McAuley Place Ste 350 Cincinnati OH 45242-4765 Valley Forge Insurance Company 20508 Ascot Specialty Insurance Company Crum &Forster Specialty Insurance Co 44520 1743106405 C X 1,000,000 X 100,000 5,000 1,000,000 2,000,000 X X X N N 6079684571 11/15/2021 11/15/2022 2,000,000 C 1,000,000 X X Hired PhyDam N N 6079684568 11/15/2021 11/15/2022 Hired PhyDam 75,000 A X X 2,000,000607968460411/15/2021N 11/15/2022 2,000,000 X 10,000 A A XY6079684599 WC679684585 11/15/2021 11/15/2021 11/15/2022 11/15/2022 1,000,000 1,000,000 1,000,000 E B D Prof/Cyber-CM Crime-3rd Party Excess Prof/Cyber-CM TCM101288 652175238 EOXS2110000601-01 3/23/2021 11/15/2021 3/23/2021 3/23/2022 11/15/2022 3/23/2022 Ea Claim/Agg Ea Claim Ea Claim $5,000,000 $1,000,000 $5,000,000 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... Orange County Attn:Risk Management 200 South Cameron Street PO Box 8181 Hillsborough NC 27278 USA DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: CLUBLLC-01 1 1 Arthur J.Gallagher Risk Management Services,Inc.Clubessential Holdings,LLC 4600 McAuley Place Ste 350 Cincinnati OH 45242-4765 25 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/202111/15/202211/15/2021 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/2021 11/15/2021 11/15/202111/15/2022 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 6079684599 11/15/2022 11/15/2021 11/15/2021 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F 11/15/202111/15/2022 6079684599 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 1 of 16 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 Agreement(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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 2 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 3 of 16 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; DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 4 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 5 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 6 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 7 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 8 of 16 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; DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 9 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 10 of 16 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; DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 11 of 16 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 12 of 16 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. VIII. 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 13 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 14 of 16 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,theInsured 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 DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 15 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F TCM-POL-001 (01/19) Page 16 of 16 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. DocuSign Envelope ID: E67DC299-98E1-4682-B281-3085AC9FC5B4DocuSign Envelope ID: D8616E66-A1E5-427C-BF38-08F85D32580F