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2024-301-E-IT Dept-RecTrac Vermont Systems-Parks & Rec and Aging activities software maintenance
Revised 01/24 vendor edits 1 [Departmental Use Only] TITLE VSI/RecTrac FY 25 NORTH CAROLINA VERMONT SERVICES AGREEMENT NO RFP/RFQ ORANGE COUNTY This Services Agreement (hereinafter “Agreement”), made and entered into this 24th day of May, 2024, (“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): the provision of services for software licenses, maintenance and support for RecTrac and WebTrac applications (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 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 2 performance of these services. Provider is solely responsible for the professional 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) Should any documents, exhibits, or addenda be attached to this Agreement, the terms of this Agreement shall have priority in any conflict with or among the terms of such referenced documents, exhibits. 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: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 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): Addition of the CYMS module, technical assistance to implement the CYMS module (to begin 6/1/2024 as described in attached quote), software licenses, maintenance and support for RecTrac and WebTrac applications from 7/1/2024 – 6/30/2027 4. Duration of Services a. Term. The term of this Agreement shall be from 6/1/2024 to 6/30/2027. 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 6/1/2024. 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 Fifty-four-thousand-forty-two and 04/100 Dollars ($54,042.04 = $37,923.69 annual maint + $6,328.35 CYMS module annual maint + $1,500.00/yr texting fees annual maint + $4,690.00 CYMS/DEAPR acct + $3,600.00 credit card fees/FINANCE acct ) (billed annually - see Attachment A). 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 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 4 a. Cooperation and Coordination. The County has designated (Robert Reynolds) 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 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 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 5 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 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. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 6 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 and federal non-discrimination laws, policies, rules, and regulations and the Orange County Non-Discrimination Policy and Orange County Living Wage Policy (each Orange County 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 Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability or non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement. In the event of a change in the County’s statutory authority, mandate or mandated DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 7 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 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:Robert Reynolds 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: 57A293A7-E790-41D7-BF18-E42777ABBC47 Revised 01/24 vendor edits 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: __________________________________ Patrick Hayden, President Printed Name and Title DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 5/24/20245/29/2024 Revised 01/24 vendor edits 9 ORANGE COUNTY—INTERNAL USE ONLY ______________________________________________________________________________ Finance Information Vendor Name: RecTrac, LLC d/b/a Vermont Systems Vendor Contact Person: Patrick Hayden Phone: 802-879- 6993 Address: 12 Market Place City Essex Junction State: VT Zip: 05452 Department: IT Amount: $54,042.04 Purpose: Parks & Rec and Aging activities software maintenance Budget Code(s): $45,752.04 from 10315020- 625010, $4,690 from 10510020-630000 and $3,600 from 10230020-682002 (over 3 years) Vendor # 54244 Vendor Status with NCSOS: Current - Active Vendor is a BOCC consultant: Yes No Contract Details Contract Type: New Amendment (Original Contract: ) (Most Recent Amendment ) Effective Date 5/24/2024 End Date 6/30/2027 Notice Date (Notice Purpose ) Award Approved by Board (Agenda Date: ); Made or Administered by Robert Reynolds Signature Authority - BOCC Express Delegation (Agenda Date: ) - Policy 9.4: Under $5,000; Service Under $90,000; Construction Under $250,000 - Budget Policy Section XV (Capital Improvement Project: ) Bidding Informal Bidding ($30k-$90k); Formal RFP ($90k+); Other (<$30k); Exception(# ) Department Affirmation 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. This agreement is approved as to technical form and content. Services related to this agreement have alread y begun or been completed. Description of the nature of the emergency condition that was addressed: Department Director’s Signature ________________________________________ Date: ________ Information Technologies This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer___________________________________ Date: ________ Inapplicable because no hardware/software purchases or related services 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 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: Received for record retention: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 5/24/2024 5/24/2024 5/28/2024 5/29/2024 5/29/2024 Revised 01/24 vendor edits 10 Office of the Clerk to the Board __________________________________________Date:________ DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 VS Billing Estimate Recreation & Parks Software Page 1 Bill To:Orange County IT Ship To:Orange County IT 131 West Margaret Lane Suite 300 Hillsborough, NC 27278 131 West Margaret Lane Suite 300 Hillsborough, NC 27278 Item Description Quantity Amount VS-V-WT-MU-MWT-M Mobile Web Trac Workgrp 1 $567.24 VS-V-WT-MU-IS-M WebTrac Internet Software,1 $1,261.82 VS-V-WT-MU-FR-M WebTrac Facility Reserv,1 $335.72 VS-V-WT-MU-AU-M WebTrac Workgroup 1 $289.41 VS-V-WT-MU-AR-M WebTrac Activity Reg Annual 1 $335.72 VS-V-RT-MU-SA-M RT SystemAdmin. M/U Annual 1 $463.05 VS-V-RT-MU-PS-M POS Inventory-/Inventory/1 $636.70 VS-V-RT-MU-PM-M Pass Mgmt Photo-M/U Annual 1 $636.70 VS-V-RT-MU-PMI-EX-M Pass Mgmt Ext Integration-1 $208.37 VS-V-RT-MU-FR-M Facility Res-M/U Annual MA 1 $636.70 VS-V-RT-MU-AU-M RecTrac Add'l User Annual MA 18 $1,250.24 VS-V-RT-MU-AR-M Activity Reg-M/U Annual MA.1 $636.70 VS-V-RT-IN-GL-M General Ledger Interface 1 $347.29 VS-T-KP-COI Certificate of Insurance Annual 1 $57.89 VS-X-S-VS-M Virtual Symposium 12 $661.50 PHYSICAL ADDRESS:Estimate #: EST-000493 RecTrac, LLC dba Vermont Systems 12 Market Place Essex Junction, VT 05452 Phone: (802)490-7672 Estimate Date: Estimate is valid for: 02/16/2024 10 Months Attachment ADocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 VS Billing Estimate Recreation & Parks Software Page 2 VS-VS-SS-IN-BR Activity Brochure Interface - Standard 12 $378.00 VS-T-PG-M Database Platform Annual Maintenance (formerly Progress) 1 $1,451.67 VS-RR-VS-PT-Monthly PayTrac Payments - Monthly Services per Merchant 12 $1,575.00 VS-V-SS-WT-SP WebTrac Splash Page 12 $300.00 Total Estimate1 12,029.72 1 This estimate is based on current Customer specifications as of the Estimate Date. Actual costs are subject to change should specifications, quantities, or other aspects of the services be requested or utilized by the Customer; please ensure a sufficient budget appropriation to account for such changes. For each year after EST-000493 there would be a 5% lift. 7/1/25 – 6/30/26 ($12,631.20) 7/1/26-6/30/27 ($13,262.76) DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 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 5/23/2024 Arthur J.Gallagher Risk Management Services,LLC 201 E 4th Street Suite 625 Cincinnati OH 45202 Susan D.Masters,CIC 513-977-3139 513-977-4641 susan_masters-oh@ajg.com Continental Insurance Company 35289 CLUBLLC-01 Valley Forge Insurance Company 20508RecTrac,LLC dba Vermont Systems 12 Market Place Essex Jct,VT 05452 American Casualty Company of Reading,PA 20427 Columbia Casualty Company 31127 Continental Casualty Company 20443 677115384 B X 1,000,000 X 100,000 5,000 1,000,000 2,000,000 X X X Y N 6079684571 11/15/2023 11/15/2024 2,000,000 A 1,000,000 X X X Hired PhyDam N N 6079684568 11/15/2023 11/15/2024 Hired PhyDam 75,000 A X X 5,000,000N607968460411/15/2023N 11/15/2024 5,000,000 X 10,000 C A XY679684599 679684585 11/15/2023 11/15/2023 11/15/2024 11/15/2024 CA &AOS 1,000,000 1,000,000 1,000,000 D E Prof/Cyber-CM Crime-3rd Party 652510479 652175238 3/23/2024 11/15/2023 3/23/2025 11/15/2024 Ea Claim/Agg Ea Claim $10,000,000 $1,000,000 Complete Named Insured:Clubessential Holdings,LLC f/k/a CE Holdco,LLC;Clubessential,LLC;ClubReady,LLC;PrestoSports,LLC f/k/a Stretch Internet LLC;LEGP II Blocker(CR),Inc;GymHQ,LLC;ClubReady Canada Software,ULC;RecTrac,LLC dba Vermont Systems;CE Management Holdings,LLC; Immersion Media,Inc dba ScoreShots;iKizmet Inc;GolfCompete,Inc dba foreUP;Exerp Buy Co;Exerp America Inc;SuperFanU,Inc dba SuperFan;RW2 Marketing &Design,Inc dba 1-2-1 Marketing;BlueGolf,LLC OH Employers Defense Liability(Stop Gap):Policy#6079684571 11/15/2023-11/15/2024 $1,000,000/$1,000,000/$1,000,000 CGL:CNA74872XX(01/15)CNA Paramount Technology General Liability Extension Endorsement provides: See Attached... Orange County 300 West Tryon Street P.O.Box 8181 Hillsborough NC 27278 USA THIS CERTIFICATE SUPERSEDES PREVIOUSLY ISSUED CERTIFICATE DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 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,LLC RecTrac,LLC dba Vermont Systems 12 Market Place Essex Jct,VT 05452 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 The client does not have any owned/titled vehicles at this time. BA:CNA83700XX(10/2015)Extended Coverage-BA Plus-For Hired and Non-Owned Autos which provides the following: -Additional Insureds Required by Written Contracts -Employee-Hired Autos -Waiver of Subrogation -Primary and Non-Contributory When Required By Contract BA:CA0444(10/13)Business Auto-Waiver of Transfer of Rights of Recovery Against Others to Us (Waiver of Subrogation).Blanket when required by 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. WC:WC430305(07/00)Utah Blanket Waiver of Subrogation when required in a written contract with you. WC:G19160B(11/97)California Blanket Waiver of Subrogation when required in a written contract with you. Umbrella is follow form regarding underlying:CGL BA WC Prof/Cyber Retention:$200,000;Retro Active 3/23/11 Prof/Cyber:GSL2302XX(06/11)CNA EPS+Technology E&O,Cyber and Multimedia Liability Insurance Policy coverage form: -pg 3 Automatic Additional Insured status when required by written contract with you; Prof/Cyber:CNA71810XX(11/12)Automatic Waiver of Subrogation where required by written contract with you. Third Party Crime Deductible:$5,000 Orange County,its officers,agents and employees are shown as additional insureds solely with respect to General Liability policy as required by written contract. Workers'compensation waiver of subrogation applies in favor of certificate holder. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 3 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/20211/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/20211/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 11/15/2023 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 1 Copyright © 2011 CNA. All Rights Reserved. THIS IS A CLAIMS MADE POLICY AND, SUBJECT TO ITS PROVISIONS, APPLIES ONLY TO CLAIMS FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD AND REPORTED IN ACCORDANCE WITH SECTION VI. CONDITIONS, PARAGRAPH B. CLAIM EXPENSES ARE WITHIN THE LIMIT OF LIABILITY. PLEASE REVIEW THE POLICY CAREFULLY AND DISCUSS THE COVERAGE WITH YOUR INSURANCE AGENT OR BROKER. In consideration of the payment of the premium and in reliance upon all statements made in the Application furnished to the Insurer designated in the Declarations, a stock insurance corporation (the “Insurer”), the Insurer and the Insureds agree as follows: I. INSURING AGREEMENTS A. ENTERPRISE LIABILITY COVERAGES If the Insuring Agreement has been purchased, as indicated in the Declarations, the Insurer will pay on behalf of the Insured all sums, in excess of the retention and up to the applicable limit of liability, that the Insured shall become legally obligated to pay: 1. Technology and Professional Liability as Damages and Claim Expenses resulting from any Claim first made against the Insured during the Policy Period, or any Extended Reporting Period, if applicable, alleging Wrongful Acts by the Insured, or by someone for whose Wrongful Acts the Insured is legally liable; 2. Media Liability as Damages and Claim Expenses resulting from liability imposed by law or Assumed Under Contract resulting from any Claim first made against the Insured during the Policy Period, or any Extended Reporting Period, if applicable, alleging Wrongful Acts by the Insured, or by someone for whose Wrongful Acts the Insured is legally liable; 3. Network Security Liability as Damages and Claim Expenses resulting from any Claim first made against the Insured during the Policy Period, or any Extended Reporting Period, if applicable, alleging Wrongful Acts by the Insured or by someone (including a Rogue Employee or Third Party Custodian) for whose Wrongful Acts the Insured is legally liable; 4. Privacy Injury Liability as Damages and Claim Expenses resulting from any Claim first made against the Insured during the Policy Period, or any Extended Reporting Period, if applicable, alleging Wrongful Acts by the Insured or by someone (including a Rogue Employee or Third Party Custodian) for whose Wrongful Acts the Insured is legally liable; 5. Privacy Regulation Proceeding as Damages (including Privacy Regulation Fines) and Claim Expenses resulting from any Privacy Regulation Proceeding first made against the Insured during the Policy Period, or any Extended Reporting Period, if applicable, alleging Wrongful Acts by the Insured or by someone (including a Rogue Employee or Third Party Custodian) for whose Wrongful Acts the Insured is legally liable. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 2 Copyright © 2011 CNA. All Rights Reserved. B. REIMBURSEMENT COVERAGES If the Insuring Agreement has been purchased, as indicated in the Declarations, the Insurer will reimburse the Insured Entity: 1. Privacy Event Expense Reimbursement for Privacy Event Expenses, up to the Privacy Event Expenses limit of liability and in excess of the Privacy Event Expenses retention; 2. Extortion Demand Reimbursement for Extortion Payments up to the Extortion Payment limit of liability and in excess of the Extortion Payment retention; 3. Privacy Regulation Investigation for Privacy Regulation Investigation Expense up to the Privacy Regulation Investigation Expense limit of liability and in excess of the Privacy Regulation Investigation Expense retention. C. FIRST PARTY BUSINESS INTERRUPTION COVERAGE AND EXTRA EXPENSE If the Insuring Agreement has been purchased, as indicated in the Declarations, the Insurer will pay the Insured Entity all First Party Loss in excess of any applicable retention and up to the applicable limit of insurance that the Insured Entity incurs due to an Exploit that causes Network Impairment during the Policy Period. D. HOW COVERAGE APPLIES 1. The coverages provided under paragraph A. above apply only if: a. prior to the inception date of this Policy or the first such policy issued and continuously renewed by the Insurer, of which this Policy is a renewal, whichever is earlier; 1. no Executive Officer knew or should have known that any such Wrongful Act, or Related Wrongful Acts, might result in such Claim; 2. such Wrongful Act has not been the subject of any notice given under any prior policy; b. such Wrongful Act occurred on or after the applicable Retroactive Date as set forth in the Declarations and prior to the end of the Policy Period; and, c. the Claim is reported to the Insurer in accordance with Section VI. CONDITIONS, paragraph B. NOTICE OF CLAIM OR CIRCUMSTANCE/PRE-CLAIMS ASSISTANCE/DATE OF CLAIM. 2. The coverages provided under paragraph B. above apply only if: a. the Privacy Event is first discovered, the Extortion Demand is first made or Privacy Regulation Investigation is first initiated during the Policy Period; and, b. the Privacy Event Expenses, Extortion Payments or Privacy Regulation Investigation Expenses are incurred within twelve months after the date that the Insured reports the Privacy Event, Privacy DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 3 Copyright © 2011 CNA. All Rights Reserved. Regulation Investigation or Extortion Demand in accordance with Section VI. CONDITIONS, paragraph B. NOTICE OF CLAIM OR CIRCUMSTANCE/PRE-CLAIMS ASSISTANCE/DATE OF CLAIM , and such amounts are consented to in writing by the Insurer, such consent not to be unreasonably withheld. E. VICARIOUS LIABILITY 1. Third Party Vicarious Liability Coverage Any entity or natural person the Insured Entity is required by written contract to include as an insured for liability of such entity or natural person for an Insured’s Wrongful Acts shall be insured under this Policy but solely to the extent that a Claim is made against such entity or natural person for a Wrongful Act of an Insured, and only so long as the written contract is entered into before such Claim occurs, provided: a. there shall be no coverage afforded to such entity or natural person for its Wrongful Acts; and, b. nothing herein shall serve to confer any rights or duties to such person or entity under this Policy, other than as provided in this paragraph. 2. Assumed Liability of Insured The Insured Entity is insured for liability it assumes in a written contract or agreement under which it assumes the tort liability (liability that would be imposed by law in the absence of any contract or agreement) of another party incurred by such third party as a result of an Insured’s Wrongful Act provided the Wrongful Act gives rise to a Claim and occurs subsequent to the execution of such contract or agreement. Solely for the purposes of liability assumed by the Insured Entity in such contract or agreement reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an Insured are deemed to be Damages provided: a. liability to such party for, or for the cost of, that party's defense has also been assumed in such contract or agreement; and, b. such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which Damages to which this insurance applies are alleged. Any coverage afforded by this paragraph is subject always to all of the Policy’s terms, conditions and exclusions. II. DEFINITIONS The following defined words shall have the same meaning throughout this Policy, whether expressed in the singular or the plural. Application means all signed applications, any attachments to such applications, other materials submitted therewith or incorporated therein, and any other documents submitted in connection with the underwriting of this Policy by the Insurer, or any other policy underwritten by the Insurer or its affiliates of which this Policy is a direct or indirect renewal or replacement. Assumed Under Contract means liability of others, for Matter furnished by the Insured, that the Insured agrees to assume under a hold harmless or indemnity agreement but only to the extent such liability arises out of any Wrongful Act. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 4 Copyright © 2011 CNA. All Rights Reserved. Claim means: A. a written demand (other than an Extortion Demand) for monetary damages or non-monetary relief, including a demand for injunctive or declaratory relief; B. a civil proceeding in a court of law or equity or any alternative dispute resolution proceeding; C. a Privacy Regulation Proceeding, against an Insured, alleging a Wrongful Act including any appeal therefrom. Claim also means a written request received by the Insured to toll or waive a statute of limitations in connection with a Claim as defined by paragraphs B. and C. above. However, a Claim does not include any criminal proceeding or criminal or civil investigation. Nor does a Claim include any regulatory proceeding except if the regulatory proceeding is a Privacy Regulation Proceeding. Claim Expenses mean: A. fees charged by attorneys designated by the Insurer or by the Insured with the written consent of the Insurer; B. all other reasonable and necessary fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a Claim if incurred by the Insurer including, but not limited to, premiums for any appeal bond, attachment bond or similar bond but without any obligation of the Insurer to apply for or furnish any such bond. In the event the Insured is entitled by law to select independent counsel to defend the Insured at the Insurer's expense, Claim Expenses also include fees the Insurer must pay to such counsel provided that such fees are limited to fees charged in accordance with the rates the Insurer actually pays to counsel the Insurer retains in the ordinary course of business in the defense of similar Claims in the community where the Claim is being defended; However, Claim Expenses do not include fees and expenses of independent adjusters or salaries of the Insurer’s officials or employees. Commerce Operations means the Insured Entity’s income producing activities. Consumer Redress Amounts means a sum of money which the Insured is legally obligated to deposit in a fund as equitable relief for the payment of consumer claims due to an adverse judgment or settlement of a Privacy Regulation Proceeding. Consumer Redress Amounts do not include any sums paid which constitute taxes, fines, penalties, injunctions or sanctions. Damages mean: A. settlements, judgments (including any award of pre-judgment and post-judgment interest on a covered judgment), or other amounts for which the Insured is legally obligated to pay on account of a covered Claim; B. punitive and exemplary damages and the multiplied portion of multiplied awards (subject to this Policy’s other terms, conditions and limitations). Enforceability of this paragraph shall be governed by such applicable law that most favors coverage for such punitive, exemplary and multiplied amounts; C. Consumer Redress Amounts with respect to Insuring Agreement A.5. Privacy Regulation Proceeding only. However, Damages do not include: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 5 Copyright © 2011 CNA. All Rights Reserved. 1. civil or criminal fines, penalties, taxes, sanctions or forfeitures, imposed on an Insured, except that this does not apply to Privacy Regulation Fines and Consumer Redress Amounts; 2. fees, costs and expenses paid or incurred or charged by any Insured, no matter whether claimed as restitution of specific funds, financial loss, mitigation expenses, set-off amounts or payments in the form of service credits or coupons or other non-cash consideration; 3. liquidated damages pursuant to a written contract or agreement in excess of the Insured’s liability caused by the Wrongful Act; 4. the Insured’s production costs, or the Insured’s cost of reprinting, recalling, recovering, shipping, mailing, correcting, reprocessing, restoring, repairing, replacing, or reproducing erroneous, damaged or lost tangible property or Matter; 5. any amount attributable to the cost of any non-monetary relief, including without limitation any costs associated with compliance with any injunctive relief of any kind or nature; 6. funds, monies, or securities that an Insured transferred or failed to transfer; 7. any loss of investment income; 8. any amounts assessed as royalty fees or payments; 9. any amount for which an Insured is absolved from payment by reason of any covenant, agreement or court order; 10. plaintiff’s attorney fees or expenses associated with items 1. through 9. above. Domestic Partner means any spouse and any person qualifying as a domestic partner under any federal, state, foreign or other law (including common law), statute or regulation or under the Insured Entity’s employee benefit plans. Denial of Service Attack means an attack executed over one or more Networks or the internet, which attack is designed and intended to disrupt the operation of one or more Networks and render the Networks inaccessible to authorized users. Electronic Infection means the transmission of a computer virus. ERISA or any Similar Act means the Employee Retirement Income Security Act of 1974, as amended, or any similar common or statutory law of the United States, Canada or their states, territories or provinces or any other jurisdiction anywhere in the world. Executive Officer means: A. any duly elected or appointed Chief Executive Officer, Chief Financial Officer, Chief Information Officer, Chief Privacy Officer, Chief Security Officer, Chief Risk Officer, Chief Legal Officer, Risk Manager, General Counsel, in- house attorney designated to be in charge of litigation, or the functional equivalent of any of the foregoing, of the Named Insured; B. an official in an Insured Entity organized and operated in a Foreign Jurisdiction who is holding a position that is equivalent to an executive position listed in A. above. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 6 Copyright © 2011 CNA. All Rights Reserved. Exploit means Unauthorized Access, Electronic Infection or a Denial of Service Attack by a third party. Extortion Demand means an incident or series of related incidents occurring during the Policy Period where an Insured Entity receives a threat to launch an attack on, to suspend, or to otherwise disrupt a Network, disrupt or deface the Insured Entity’s website or release or use Protected Information in the Insured Entity’s care, unless monies are paid or specified action is taken, and an Executive Officer believes there is an imminent and probable danger of such action. An Extortion Demand does not include any demand seeking monies from the Insured Entity that are allegedly due and owing pursuant to contract or operation of law. Extortion Payment means all reasonable and necessary expenses incurred by the Insured Entity with the Insurer’s prior consent, in order to respond to an Extortion Demand, including payment of monies demanded by an extortionist. Extortion Payments do not include such expenses to the extent the Insured Entity has recovered such expenses or been reimbursed for them from any other source. Extra Expense means any reasonable and necessary expenses, in excess of the Insured Entity’s normal operating expenses, that the Insured Entity incurs during the Period of Restoration associated with restoring and resuming Commerce Operations, including: A. reasonable expense incurred to minimize the interruption of Commerce Operations not covered elsewhere in this Policy; and, B. reasonable expense incurred to resume Commerce Operations on a temporary basis, including those associated with securing temporary third party Internet Service Provider services, temporary website and/or e- mail hosting services, rental of temporary Networks, other temporary equipment or service contracts. First Party Loss means: A. the amount of net income, before interest, tax, depreciation or amortization, that the Insured Entity would have earned during the Period of Restoration but for the Network Impairment; and, B. Extra Expense. However, First Party Loss does not include: 1. ordinary operating expenses incurred by the Insured Entity during the Period of Restoration; 2. costs or expenses to update, upgrade, enhance, or replace the Insured’s Network beyond that which existed prior to the occurrence of the Network Impairment; 3. costs or expenses the Insured Entity incurs to prove or document First Party Loss; 4. Privacy Event Expenses and Extortion Payments. Foreign Jurisdiction means any jurisdiction, other than the United States or any of its territories or possessions. Insured means the Insured Entity and: A. any natural person who was, is or becomes an employee (including leased and temporary employees), director, officer, trustee, manager, member or partner of the Insured Entity but solely with respect to a Wrongful Act committed within the scope of such individual’s duties on behalf of the Insured Entity; DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 7 Copyright © 2011 CNA. All Rights Reserved. B. any natural person independent contractor of the Insured Entity but solely with respect to a Wrongful Act committed within the scope of such individual’s duties on behalf of the Insured Entity; C. any natural person of an Insured Entity organized and operated in a Foreign Jurisdiction who is holding a position that is equivalent to an executive position listed in A. above. Insured Entity means the Named Insured and any Subsidiary including any such entity: A. as a joint venturer but only with respect to such Insured Entity’s interest in such joint venture; B. as a debtor in possession under United States bankruptcy law or an equivalent status under the law of any other country. Internet Services means services to obtain, maintain or use the Internet, Intranet or extranet, including, but not limited to: A. services as an Internet access provider, application service provider, domain name registrar, domain name register, search engine, web browser; B. web hosting, e-commerce transaction services, electronic exchange and auction services, Internet media services, managed and network security services, public key infrastructure services and web portal services; C. development, design and maintenance of chat rooms, websites, e-mail services, bulletin boards. Management Control means owning interests representing more than 50% of the voting, appointment or designation power for the selection of a majority of, or having the right, pursuant to written contract or the by-laws, charter, operating agreement or similar documents, to elect, appoint or designate a majority of the Board of Directors of a corporation; the management committee members of a joint venture; or the members of the management board of a limited liability company, the general partners of a limited partnership or the partnership managers of a general partnership or the Foreign Jurisdiction equivalent of any such entity. Matter means any content regardless of its nature or form. Named Insured means any entity named as such in the Declarations. Network means a network owned or operated by or on behalf of or for the benefit of the Insured Entity, provided, however, Network does not include the Internet, telephone company networks, electrical grids, or other public infrastructure network. Network Impairment means the disruption, modification, destruction or damage to the Insured’s Network that results in the impairment of the Insured Entity’s Network to such an extent that the Insured Entity is substantially unable to conduct Commerce Operations. Nonpublic Corporate Information means proprietary and confidential information including trade secrets, of a third- party entity. Period of Restoration means the period of time that: A. begins with the date and time that Commerce Operations have first been interrupted by a Network Impairment and after application of the Business Interruption Waiting Period Retention, as specified in the Declarations; and DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 8 Copyright © 2011 CNA. All Rights Reserved. B. ends with the earlier of: 1. the date and time Commerce Operations are restored to substantially the level of operation that existed prior to the Network Impairment; or, 2. the date and time Commerce Operations would have been restored to substantially the level of operation that existed prior to the Network Impairment if the Insured Entity exercised due diligence in remediating such Network Impairment. Personal Information means any information relating to an identified or identifiable natural person. Policy Period means the period from the effective date of this Policy to the Policy expiration date stated in the Declarations, or its earlier cancellation date. Pollutants means any substance exhibiting hazardous characteristics as is or may be defined or identified on any list of hazardous substances issued by the United States Environmental Protection Agency or any state, local or foreign counterpart. Pollutants also means, without limitation, any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals or waste (including materials to be recycled, reconditioned or reclaimed), as well as any air emission, odor, waste water, oil or oil products, infectious or medical waste, asbestos, or asbestos products or any noise. Privacy Event means any act, error or omission which, in the reasonable opinion of an Executive Officer did cause or is reasonably likely to result in the unauthorized disclosure or the unauthorized use of Protected Information. Privacy Event Expenses means all reasonable and necessary fees, costs and expenses incurred by the Insured Entity and consented to by the Insurer: A. to directly effect compliance with a Security Breach Notice Law including notification to individuals or entities who are required to be notified; B. to provide voluntary notification to individuals or entities whose Protected Information may have been subject to a Privacy Event; C. to hire a computer forensics firm to investigate the existence and cause of a Privacy Event and to determine the extent such Protected Information has been or may have been disclosed; D. to hire an attorney or expert to determine the applicability of and the actions necessary to comply with Security Breach Notice Laws; E. to minimize harm to the Insured Entity’s reputation from a Privacy Event, including but not limited to the costs to set up a call center or provide a credit monitoring service for those impacted by a Privacy Event. However, Privacy Event Expenses do not include the costs, fees and expenses necessary to remediate any deficiencies that gave rise to the Privacy Event. Privacy Injury means: A. unauthorized collection, disclosure, use, access, destruction or modification of Protected Information; B. failure to implement, maintain, or comply with policies and procedures stating the Insured’s obligations with regard to Protected Information. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 9 Copyright © 2011 CNA. All Rights Reserved. Privacy Regulation Fines means civil fines, sanctions or penalties insurable under applicable law and imposed under any Privacy Regulation Proceeding for a violation of any Security Breach Notice Law or any law, statute or regulation governing Protected Information. Privacy Regulation Investigation means a civil, administrative or regulatory investigation or written request for information by a federal, state, local or foreign governmental authority in connection with any law governing Protected Information or any Security Breach Notice Law , and that is reasonably likely to give rise to a covered Claim. Privacy Regulation Investigation Expenses means all reasonable and necessary expenses incurred by the Insured Entity with the Insurer’s prior consent, in order to respond to or effectuate compliance with a Privacy Regulation Investigation. Privacy Regulation Investigation Expenses shall not include Privacy Event Expenses. Privacy Regulation Proceeding means a civil, administrative or regulatory proceeding by a federal, state, local or foreign governmental authority, alleging a Wrongful Act as defined in paragraph E. of the definition of Wrongful Act. Professional Services means those services performed for others that are specified in the attached “Professional Services Endorsement”. If no “Professional Service Endorsement” is attached to this Policy, no Professional Services are covered under this Policy. Property Damage means: A. physical injury to tangible property including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; B. loss of use of tangible property that is not physically damaged which is caused by an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Tangible property does not include electronic data. As used in this definition, electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. Protected Information means Nonpublic Corporate Information or Personal Information. Related Claims mean all Claims based upon or arising out of a single Wrongful Act or any Related Wrongful Acts. Related Wrongful Act means all Wrongful Acts that are logically or causally connected by any common fact, circumstance, situation, transaction, event, advice or decision. Retroactive Date means the date set forth in the Declarations. Rogue Employee means a past, present or future employee of the Insured Entity who acts outside of his or her scope of employment. Security Breach Notice Law means any statute or regulation that requires an entity that maintains Protected Information to provide notice to specified individuals of any actual or potential unauthorized disclosure or potential disclosure of such Protected Information. Subsidiary means any entity in which the Named Insured has Management Control directly or indirectly through one or more other Subsidiaries: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 10 Copyright © 2011 CNA. All Rights Reserved. A. on or before the effective date of this Policy; B. after the effective date of this Policy by reason of being created or acquired by the Insured Entity after such date, if and to the extent coverage with respect to the entity is afforded pursuant to Section VI. CONDITIONS, paragraph K. COVERAGE FOR NEW SUBSIDIARIES. Takeover means: A. the acquisition of Management Control of the Named Insured by another entity or person, or group of entities or persons acting in concert; B. the merger of the Named Insured into another entity such that the Named Insured is not the surviving entity; or C. the consolidation of the Named Insured with another entity. Technology Product means: A. hardware, firmware, software or source or object code; B. information technology equipment, electronic device, electronic component or computer peripheral; C. any wireless or wire line telecommunication equipment including, but not limited to, wireless, wireline, satellite or broadcast network equipment, that is created, designed, manufactured, sold, or distributed by or on behalf of the Insured Entity or licensed or leased by the Insured Entity to others. Technology Services means: A. information technology services including, but not limited to: 1. designing, developing, programming, writing, testing, installing, servicing, supporting, maintaining, repairing and updating software including any modification and reengineering and providing training, updates and support; 2. planning, designing, developing, engineering, installation and maintaining computer systems, computer networks and electronic systems; 3. managing and operating computer systems, computer networks and facilities, as well as facilities support services; 4. designing and publishing prepackaged and custom designed application and systems software; 5. data processing, management, warehousing and data hosting including data entry, conversion, destruction and analysis; B. Internet Services; C. Telecommunications Services; DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 11 Copyright © 2011 CNA. All Rights Reserved. D. outsourcing, education, training, project management or consulting of or related to A. through C. above or on Technology Products. Telecommunication Services means: A. the offering of the electronic or digital transmission of information, including local, regional and long distance wireline and wireless dial tone access and switched services, cable, DSL, ISDN and VOIP services; B. any value added services offered in conjunction with A. above including directory assistance, toll free services, voice mail, paging, call forwarding, call waiting, caller ID and emergency 911 services; C. analysis, design, integration and conversion of telecommunication systems or wireless or wire line telecommunication equipment including satellite or broadcast network equipment. Third Party Custodian means any third party to whom the Insured Entity entrusts Protected Information. Unauthorized Access means any accessing of the Insured Entity’s Network or information residing on the Insured Entity’s Network by unauthorized persons or by authorized persons accessing or using Insured Entity’s Network or information thereupon in an unauthorized manner. Wrongful Act means: A. with respect to Insuring Agreement A.1. Technology and Professional Liability only, a Wrongful Act means any actual or alleged act, error or omission: 1. committed solely in the conduct of Professional Services or Technology Services for others; or 2. resulting in the failure of the Insured’s Technology Products to perform the function or serve the purpose intended; B. with respect to Insuring Agreement A.2. Media Liability only, Wrongful Act means: 1. gathering, acquiring, obtaining, researching, developing, editing, preparing, producing, filming, videotaping and recording Matter; or 2. the dissemination or utterance of Matter, through any medium and by any means, including: a. publishing, printing, advertising, marketing, promoting, exhibiting; b. broadcasting, telecasting, webcasting, cablecasting; c. syndicating, selling, leasing, licensing, distributing, serializing or releasing; d. public appearances or performances; e. blogging, tweeting or other forms of online, digital or electronic dissemination, that results in: i. any form of defamation or other tort related to disparagement or harm to the character, reputation or feelings of any person or organization, including but not limited to libel, slander, product disparagement or trade libel; DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 12 Copyright © 2011 CNA. All Rights Reserved. ii. any form of invasion, infringement or interference with rights of privacy or publicity, including but not limited to false light, public disclosure of private facts, intrusion and commercial appropriation of name or likeness; iii. wrongful entry or eviction, trespass, eavesdropping or other invasion of the right of private occupancy; iv. false arrest, detention or imprisonment, abuse of process or malicious prosecution; v. infringement of title, slogan, logo, trademark, trade name, trade dress, service mark or service name; vi. infringement of copyright or any plagiarism, violation of moral rights (droit moral) or passing off, piracy, misappropriation of ideas under implied contract or other misappropriation of property rights, ideas or information; vii. infliction of emotional distress, outrage or outrageous conduct, or any prima facie tort; viii. negligence in connection with the content of Matter; ix. unfair competition or unfair trade practices alleged in conjunction with paragraphs i. through viii. above, including but not limited to dilution, confusion, deceptive trade practices or unfair trade practices, civil actions for consumer fraud, false, disruptive or misleading advertising or misrepresentation in advertising; or x. negligent supervision of an employee alleged in conjunction with paragraphs i. through viii. above; C. with respect to Insuring Agreement A.3. Network Security Liability only, Wrongful Act means any actual or alleged act, error or omission that results in a breach of security of the Network and gives rise to: 1. an unscheduled or unplanned inability of an authorized third party user to gain access to the Network to communicate with the Insured Entity or other computers or computer networks (other than any Internet service provider interruptions); 2. disruption or degradation of a network owned or operated by or on behalf of or for the benefit of a person or entity other than the Insured Entity (other than Internet, telephone company networks, electrical grids, or other public infrastructure network) including but not limited to the infection of a third party network with malware or viruses; or 3. the unauthorized use, disclosure, disruption, modification or destruction of or unauthorized access to any information (other than software) resident on the Network or the unauthorized use, modification or destruction of any software resident on the Network; D. with respect to Insuring Agreement A.4. Privacy Injury Liability only, Wrongful Act means any Privacy Injury; E. with respect to Insuring Agreement A.5. Privacy Regulation Proceeding only, Wrongful Act means any actual or alleged act, error or omission that results in a violation of any statute or regulation governing Protected Information or any violation of a Security Breach Notice Law . III. EXCLUSIONS This Policy does not apply to any Claim: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 13 Copyright © 2011 CNA. All Rights Reserved. A. ASSUMED LIABILITY based upon or arising out of any assumption of the liability of others under any contract or agreement, except that this exclusion does not apply to liability arising under Section I. INSURING AGREEMENTS, Paragraph E. VICARIOUS LIABILITY or, with respect to Insuring Agreement A.2. Media Liability, liability Assumed Under Contract; B. BODILY INJURY/PROPERTY DAMAGE based upon or arising out of any actual or alleged bodily injury (including death), sickness, disease, emotional distress, mental anguish, of any person, or Property Damage, provided however that this exclusion does not apply to: 1. allegations of emotional distress or mental anguish brought under Insuring Agreement A.2. Media Liability; 2. the wrongful infliction of emotional distress or mental anguish arising out of Privacy Injury; C. CLAIMS BY INSUREDS by or on behalf of any Insured provided, however that this exclusion does not apply to: 1. any Claim that is in the form of a crossclaim, third-party claim or otherwise for contribution or indemnity which is part of and results directly from a Claim which is not otherwise excluded under this Policy; 2. any Claim brought or maintained by or on behalf of a bankruptcy or insolvency trustee, examiner, liquidator, receiver or rehabilitator for an Insured Entity or any assignee of such trustee, examiner, liquidator, receiver or rehabilitator; 3. any Claim by an Insured (other than an Insured Entity) that alleges Privacy Injury; D. DELIBERATE ACTS/COMMINGLING OR MISAPPROPRIATION OF FUNDS based upon or arising out of any dishonest, fraudulent, criminal or malicious act or omission, commingling, misappropriation or misuse of funds, intentional wrongdoing or knowing violation of any contract or agreement by or on behalf of an Insured. The Insurer shall pay Claim Expenses of such Claims unless or until a final judgment, ruling or other finding of fact in any proceeding establishes that such act, omission, commingling, misappropriation, misuse or violation was committed. If such act, or such commingling, misappropriation, misuse or violation is so determined to have been committed, the Insured will reimburse the Insurer for all Claim Expenses paid. The Insurer will not defend any criminal act which was the subject of a criminal prosecution in which the Insured was found guilty or pleaded guilty, nolo contendere or no contest. Criminal proceedings are not covered under this Policy regardless of the allegations made against any Insured. Provided, however, that solely with respect to Insuring Agreement A.2. Media Liability, this exclusion does not apply to any such act if an attorney for the Insured Entity approves of such act in advance based upon a good faith belief that such act is protected by the First Amendment to the United States Constitution or any similar law of another jurisdiction; For purposes of determining the applicability of this exclusion: 1. the facts pertaining to and knowledge possessed by any natural person Insured shall not be imputed to any other natural person Insured; and, DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 14 Copyright © 2011 CNA. All Rights Reserved. 2. only facts pertaining to and knowledge possessed by any Executive Officer shall be imputed to the Insured Entities; E. DISCRIMINATION based upon or arising out of any actual or alleged discrimination, humiliation, harassment or misconduct that relate to an individual’s race, creed, color, age, sex, national origin, religion, handicap, marital status or sexual preference except that this exclusion does not apply to Claims brought under Insuring Agreement A.2. Media Liability; F. ERISA OR ANY SIMILAR ACT based upon or arising out of any actual or alleged violation of the responsibilities, obligations or duties imposed upon fiduciaries by ERISA or any Similar Act; G. GOVERNMENTAL ORDERS as a direct result of any action or order by any domestic or foreign law enforcement, administrative, regulatory or judicial body or other governmental authority; H. LICENSING AND OWNERSHIP OF MATERIAL by any joint venturer or on behalf of such party based upon or arising out of ownership disputes relating to Matter supplied; I. MECHANICAL OR ELECTRICAL FAILURE AND SERVICE INTERRUPTIONS based upon or arising out of any failure of: 1. electrical infrastructure; 2. telecommunications infrastructure; or 3. any satellite, which is not under the Insured Entity's operational control; J. OVER-REDEMPTION based upon or arising out of price discounts, prizes, awards, coupons or any other valuable consideration given in excess of the total contracted or expected amount; K. OWNED ENTITY made against an Insured by any entity, if at the time of the Wrongful Act giving rise to such Claim: 1. any Insured controlled, owned, operated or managed such entity; 2. any Insured was an owner, partner, director, officer or employee of such entity; DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 15 Copyright © 2011 CNA. All Rights Reserved. For the purpose of this exclusion, a 5% or more owner of the voting stock of a publicly held corporation or a 40% or more owner of the voting stock of a privately held corporation shall be deemed to own such entity; L. PATENT INFRINGEMENT based upon or arising out of actual or alleged infringement of patent; M. POLLUTION/NUCLEAR based upon or arising out of: any actual or alleged nuclear reaction, radiation or contamination, or any actual, alleged or threatened discharge, release, escape, or disposal of, or exposure to, Pollutants; any request, direction or order that any of the Insureds test for, monitor, clean up, remove, contain, treat, detoxify, neutralize or in any way respond to or assess the effect of Pollutants or nuclear reaction, radiation or contamination, or any voluntary decision to do so; or any actual or alleged Property Damage, or bodily injury, sickness, disease or death of any person, or financial loss to the Insured Entity, their security holders, or their creditors resulting from any of the aforementioned matters; N. PRIOR WRONGFUL ACTS OF SUBSIDIARIES based upon or arising out of any Wrongful Act: 1. by or on behalf of any Subsidiary whether such Subsidiary qualified as such prior to the inception date of the Policy, or after the inception date of this Policy by virtue of paragraph 1. of Section VI. CONDITIONS, paragraph K. Coverage for New Subsidiaries or by natural person Insureds of any such Subsidiary, where such Wrongful Act occurred in whole or in part before the date the Insured Entity first had Management Control; 2. occurring on or after the date the Insured Entity first had Management Control of any Subsidiary described in paragraph 1. above, which, together with any Wrongful Acts described in paragraph 1. above, would be considered Related Wrongful Acts; O. SECURITIES AND INVESTMENT CLAIMS based upon or arising out of any actual or alleged: 1. filing of any registration statement under the Securities Acts of 1933, or the Securities Exchange Act of 1934, any State Blue Sky Law, or any other state or local securities law; 2. violation of the Investment Advisers Act of 1940, the Securities Act of 1933, the Securities and Exchange Act of 1934, rules or regulations of the Securities Exchange Commission under either or both acts, similar securities laws or regulations of state, or any laws of any state relating to any transaction arising out of, involving, or relating to the public offering of securities; Provided however that this exclusion does not apply to any Claim for Privacy Injury; P. TRADE SECRETS based upon or arising out of any actual or alleged misappropriation of trade secrets obtained by any natural person Insured prior to commencing employment with an Insured Entity; Q. UNFAIR COMPETITION/ANTITRUST CLAIMS/RICO CLAIMS DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 16 Copyright © 2011 CNA. All Rights Reserved. based upon or arising out of any actual or alleged: 1. unfair competition, dilution, deceptive trade practices, civil actions for consumer fraud or false or deceptive advertising or misrepresentation in advertising; 2. charges of price fixing, monopolization or restraint of trade; 3. violation of: a. the Federal Trade Commission Act; b. the Sherman Act, the Clayton Act, or any federal statutory provision regarding anti-trust, monopoly, price fixing, price discrimination, predatory pricing or restraint of trade; c. the Racketeer Influenced and Corrupt Organizations Act; d. any rules or regulations promulgated under or in connection with the above statutes, or any similar provision of any federal, state, foreign or other law (including common law) or statute, except that paragraph 1. does not apply to any Claim under Insuring Agreement A.2. Media Liability and paragraphs 1. and 3.a. do not apply to any Claim under Insuring Agreement A.5. Privacy Regulation Proceeding; R. Unsolicited Communication based upon or arising out of: 1. any actual or alleged violation of any federal or state anti-spam statute or regulation, including the CAN- SPAM Act of 2003; or 2. any actual or alleged violation of any federal or state statute or regulation prohibiting the dissemination of unsolicited communications, including any violation of the Telephone Consumer Protection Act of 2001. IV. FIRST PARTY EXCLUSIONS This Policy does not apply to any First Party Loss, regardless of any other cause or event that contributes concurrently or in any sequence to the First Party Loss, caused by or resulting from: A. DEFECTS IN DATA AND SOFTWARE AND NETWORK any defect of design, implementation, operation, incompatibility or any other fault of data and software or the Insured Entity’s Network, or any part thereof where such defect or fault is introduced by the Insured Entity’s: 1. use of a third party product, including but not limited to software and equipment, in a manner inconsistent with the manufacturer’s intended use; 2. modification of a third party product or integration of components in violation of the manufacturer’s warranty or other license terms; DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 17 Copyright © 2011 CNA. All Rights Reserved. 3. integration of components in a manner inconsistent with any of the components’ intended use as established by its manufacturer; or, B. DELIBERATE ACTS any deliberately dishonest, fraudulent or criminal act or omission, or any willful violation of any statute or regulation, by or on behalf of an Insured; C. GOODWILL any adverse impact on goodwill, reputation or potential future income; D. GOVERNMENTAL ORDERS any action or order by any domestic or foreign law enforcement, administrative, regulatory or judicial body or other governmental authority; E. PROPERTY DAMAGE direct physical loss of or damage to property; F. VALUE OF STOCKS any change in value of shares, stock or securities; G. VENDOR ACTS unauthorized and deliberate malicious act or omission by a vendor or other third party authorized by the Insured Entity to perform services on the Insured Entity’s Network. V. LIMITS OF LIABILITY/RETENTION A. POLICY AGGREGATE The amount set forth as the Policy Aggregate Limit of Liability in the Declarations shall be the maximum aggregate limit of liability of the Insurer for all Damages, Claim Expenses, Privacy Event Expenses, Extortion Payments, Privacy Regulation Investigation Expenses and First Party Loss under this Policy. The Scheduled Limits of Liability set forth in the Coverage Schedule in the Declarations are sub-limits which further limit and do not increase the Insurer’s limit of liability under this Policy Aggregate Limit. The limits of liability set forth in paragraph B. below are subject always to this Policy Aggregate. B. INSURING AGREEMENTS LIMITS OF LIABILITY Each Insuring Agreement limit of liability set forth in the Coverage Schedule of the Declarations applies as follows: 1. All Claims in the Aggregate The amount set forth in the Coverage Schedule in the Declarations is the limit of liability for all Damages and Claim Expenses for all applicable Claims/Privacy Regulation Proceedings combined. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 18 Copyright © 2011 CNA. All Rights Reserved. 2. Privacy Regulation Fines Sublimit of Liability The amount set forth in the Coverage Schedule in the Declarations as the Privacy Regulation Fines Sublimit of Liability, is the limit of liability for all Privacy Regulation Fines, which limit is a sublimit of, and not in addition to, the Privacy Regulation Proceeding limit of liability set forth in the Declarations. 3. Privacy Regulation Investigation Limit of Liability The amount set forth in the Coverage Schedule in the Declarations as the Privacy Regulation Investigation Sublimit of Liability, is the limit of liability for all Privacy Regulation Investigation Expense, which limit is a sublimit of, and not in addition to, the Privacy Regulation Proceeding limit of liability set forth in the Declarations. 4. First Party Limit of Liability The amount set forth in the Coverage Schedule in the Declarations as the First Party Loss limit of Liability, is the limit of liability for all First Party Loss, regardless of the number of Network Impairments that occur during the Policy Period. 5. All Privacy Event Expenses, Extortion Payments and Privacy Regulation Investigation Expenses in the Aggregate The amount set forth in the Coverage Schedule in the Declarations for Privacy Event Expenses. Extortion Payments and Privacy Regulation Investigation Expenses is the limit of liability for all covered Privacy Event Expenses, Extortion Payments and Privacy Regulation Investigation Expenses, as applicable. C. RETENTIONS 1. Retentions set forth in the Declarations shall apply for each Insuring Agreement as set forth in the Declarations. The Insurer shall pay Damages and Claim Expenses in excess of any retention as it becomes due and payable to the Insureds. 2. The Insurer’s obligation to pay Damages and Claim Expenses is in excess of any applicable retention. The Insurer will have no obligation to pay all or any portion of any applicable retention. Should the Insurer, in its sole discretion, pay any retention, then the Named Insured shall have the obligation to reimburse the Insurer for such amounts. 3. A separate retention applies to each Privacy Event, Extortion Demand and Privacy Regulation Investigation in the amount and as specified in declarations. The Insurer shall only be liable for the amount of Privacy Event Expenses, Extortion Payments or Privacy Regulation Investigation Expenses in excess of the applicable retention amounts. 4. A separate retention applies to each Network Impairment under each First Party Business Interruption Coverage And Extra Expense Insuring Agreement in the amount and as specified in declarations. The Insurer shall only be liable for the amount of First Party Loss which is in excess of the applicable retention amounts. 5. In the event more than one retention applies, the maximum total retention amount applicable shall be the highest of such applicable retentions. D. RELATED CLAIMS AND RELATED PRIVACY EVENT , EXTORTION DEMAND, PRIVACY REGULATION INVESTIGATION, OR NETWORK IMPAIRMENT DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 19 Copyright © 2011 CNA. All Rights Reserved. 1. If Related Claims are subsequently made against the Insured and reported to the Insurer, all such Related Claims, whenever made, shall be considered a single Claim subject to the limit of liability applicable to the earliest such Claim first reported to the Insurer. 2. If there is more than one Privacy Event, Extortion Demand, Privacy Regulation Investigation, or Network Impairment involving the same act, error or omission or acts, errors or omissions that are logically or causally connected by any common fact, circumstance, situation, transaction, event, advice or decision, then each such Privacy Event, Extortion Demand, Privacy Regulation Investigation, or Network Impairment shall be considered as one Privacy Event, Extortion Demand, Privacy Regulation Investigation, or Network Impairment which shall be subject to the Privacy Event, the Extortion Demand, the Privacy Regulation Investigation, or the Network Impairment limit applicable to the earliest such Privacy Event, Extortion Demand, Privacy Regulation Investigation, or Network Impairment reported to the Insurer under this Policy or under any prior policy. E. MULTIPLE INSUREDS, CLAIMS AND CLAIMANTS The limits of liability shown in the Declarations and subject to the provisions of this Policy is the amount the Insurer will pay for Damages, Claim Expenses, Privacy Event Expenses, Extortion Payments, Privacy Regulation Investigation Expenses and First Party Loss regardless of the number of Insureds, Claims made, Privacy Events, Extortion Demands, Privacy Regulation Investigations, persons or entities making Claims. VI. CONDITIONS A. SETTLEMENT/DEFENSE OF CLAIMS 1. Defense/Settlement The Insurer shall have the right and duty to defend in the Insured’s name and on the Insured’s behalf a Claim, other than a Privacy Regulation Proceeding, even if any of the allegations of the Claim are groundless, false or fraudulent. The Insurer has the right to make such investigation and conduct negotiations and enter into such settlement of any Claim as the Insurer deems necessary. The Insureds and not the Insurer have the duty to defend any Privacy Regulation Proceedings. The Insurer shall be entitled to effectively associate in the defense and the negotiation of any settlement of any Privacy Regulation Proceeding that involves or appears reasonably likely to involve the Insurer. Each Insured shall give the Insurer full cooperation and shall furnish the Insurer with copies of reports, investigations, pleadings, and all related papers, and such other information and assistance as the Insurer may reasonably request. 2. Consent to Settlement The Insurer shall not settle any Claim without the prior written consent of the Named Insured. If however, the Named Insured refuses to consent to such settlement or compromise recommended by the Insurer and agreed to by the claimant, the Insurer’s duty to defend shall then cease and the Named Insured shall thereafter at the Named Insured's own expense negotiate or defend such Claim independently of the Insurer, and the Insurer’s limit of liability for such Claim shall be reduced to: a. the amount of the proposed settlement plus Claim Expenses incurred up to the date of the Named Insured’s refusal to consent to such proposed settlement; plus: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 20 Copyright © 2011 CNA. All Rights Reserved. b. fifty percent (50%) of Claim Expenses, in excess of the amount referenced in paragraph a. above. 3. Exhaustion of Limits The Insurer shall not be obligated to investigate, defend, pay or settle, or continue to investigate, defend, pay or settle a Claim after the applicable limit of liability has been exhausted by payment of Damages or Claim Expenses, or any combination thereof. In such case, the Insurer shall have the right to withdraw from the further investigation, defense, payment or settlement of such Claim by tendering control of said investigation, defense or settlement of the Claim to the Insured. B. NOTICE OF CLAIM, CIRCUMSTANCE OR NETWORK IMPAIRMENT/PRE-CLAIMS ASSISTANCE/DATE OF CLAIM 1. Notice of Claim, Extortion Demand, Privacy Event or Privacy Regulation Investigation The Insured, as a condition precedent to the obligations of the Insurer shall give written notice of any Claim, Extortion Demand or Privacy Event to the Insurer as soon as reasonably practicable after any Executive Officer learns of such Claim, Extortion Demand, Privacy Event or Privacy Regulation Investigation but in no event later than ninety (90) days after termination or expiration of the Policy Period or any subsequent renewal Policy Period in an uninterrupted series of renewals, or prior to the expiration of the Extended Reporting Period, if applicable. Failure to give such notice as soon as reasonably practicable shall not invalidate coverage of such Claim, unless the failure to provide timely notice has prejudiced the Insurer or unless the notice is provided ninety (90) days after termination or expiration of the Policy Period or any subsequent renewal Policy Period in an uninterrupted series of renewals, or prior to the expiration of the Extended Reporting Period, if applicable. 2. Notice of Circumstance If during the Policy Period the Insureds first become aware of any facts or circumstances which may reasonably be expected to give rise to a Claim and during such Policy Period give written notice to the Insurer of: a. the allegations anticipated as the basis of the potential Claim and the names of any potential claimants; b. the identity of the specific Insureds allegedly responsible for such specific facts and circumstances; c. the consequences which have resulted or may result from such specific facts and circumstances; d. the amount of the potential monetary damages or the nature of non-monetary relief which may be sought in consequence of such specific facts and circumstances; and e. the circumstances by which Insureds first became aware of such specific facts and circumstances, then any such covered Claim which is subsequently made and which arises out of such facts and circumstances shall be deemed to have been first made against the Insured and reported to the Insurer by the Insureds at the time such written notice was received by the Insurer. 3. Notice of Network Impairment If a Network Impairment takes place or is reasonably likely to take place, the Insured Entity must do the following: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 21 Copyright © 2011 CNA. All Rights Reserved. a. provide notice to the Insurer as soon as practicable; b. such notice should include particular details as to the nature of the Network Impairment; and, c. immediately forward to the Insurer all information the Insured Entity possesses or receives in connection with the Network Impairment. 4. Pre-Claims Assistance a. Insurer’s Discretionary Investigation Until the date a Claim is made, the Insurer may pay for all costs or expenses it incurs, at its sole discretion and without any obligation, as a result of investigating a circumstance that the Insured reports in accordance with subparagraph 2. Notice of Circumstance above. Such costs and expenses are outside the limits or liability and not subject to the retention. b. Insurer’s Discretionary Remediation If the Insurer elects to investigate a circumstance pursuant to paragraph 4.a. above, and such investigation results in recommended remediation measures that both the Insurer and the Named Insured mutually agree to undertake, the Insurer shall reimburse the Insured for reasonable costs and expenses to enact such recommended remediation measures if such costs and expenses were approved by the Insurer in advance. Such costs and expenses are within the limits of liability, subject to the retention and the coinsurance percentage provided below and subject to a sublimit of liability in the amount of 10% of the aggregate limit of liability. The Insureds shall bear uninsured the percentage provided on the declarations as a coinsurance percentage applied to all costs and expenses incurred pursuant to this paragraph b. The coinsurance percentage is in addition to the applicable retention and the Insurer is only liable to pay the remaining percentage of costs and expenses in excess of the applicable retention and coinsurance percentage. 5. When a Claim is Deemed Made Except as provided in subparagraph 2. Notice of Circumstance, above, a Claim shall be deemed made: a. in the case of a written demand for monetary damages or non-monetary relief, on the earlier of the Executive Officer’s or Insurer's receipt of notice of such demand; b. in the case of a civil proceeding in a court of law or equity or arbitration, on the date of service upon or other receipt by any Executive Officer a complaint against the Insured in such proceeding or arbitration; c. in the case of a Privacy Regulation Proceeding, on the date of receipt by such Executive Officer of a written notice from the investigating authority identifying such Insured as an individual or entity against whom a proceeding will be commenced. 6. To Whom Notices are Sent The Insureds shall give written notice to the Insurer under this Policy as specified in the Declarations. If mailed, the date the Insurer receives such notice shall constitute the date such notice was given. Proof of mailing shall be sufficient proof of notice. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 22 Copyright © 2011 CNA. All Rights Reserved. C. CANCELLATION 1. Insurer’s Right to Cancel The Insurer shall not cancel this Policy except for non-payment of any premium when due. The Insurer shall provide to the Named Insured written notice of such cancellation stating when, not less than fifteen (15) days thereafter, such cancellation shall be effective, except that non-payment of premium due at inception of this Policy will result in the policy being cancelled effective as of the inception date. 2. Named Insured’s Right to Cancel The Insureds grant the exclusive authority to cancel this Policy to the Named Insured. The Named Insured may cancel this Policy by providing the Insurer written notice stating when thereafter such cancellation shall be effective. The mailing or delivery of such notice shall be sufficient. The unearned premium shall be computed on a pro-rata basis. D. EXTENDED REPORTING PERIOD 1. Automatic Extended Reporting Period The Named Insured shall have the right to a period of sixty (60) days following the effective date of such cancellation or non-renewal, in which to give written notice to the Insurer of Claims first made against the Insured during said sixty (60) days period for any Wrongful Act committed prior to the end of the Policy Period and otherwise covered by this Policy. 2. Optional Extended Reporting Period If the Named Insured or Insurer cancels or non-renews this Policy, the Named Insured shall have the right to purchase, upon payment of an additional premium, an extension of this Policy, for any Claim first made or deemed to be first made during such period for Wrongful Acts committed before the earlier of the end of the Policy Period or the effective date of any Takeover. The additional premium shall be as set forth below. Policy Extension Additional Premium (as a % of the Total Premium Paid for this Policy) 1 Year 100% 2 Years 150% 3 Years 200% This period shall be referred to as the “Optional Extended Reporting Period”. 3. Payment of Extended Reported Period Premium As a condition precedent to the right to purchase the Optional Extended Reporting Period, the total premium for this Policy must have been paid. The right to purchase such Optional Extended Reporting Period shall end unless the Insurer receives written notice of the Named Insured’s election to purchase such Optional Extended Reporting Period and full payment of the premium for such period within sixty (60) days after the end of the Policy Period. 4. Non-Cancelable/Premium Fully Earned DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 23 Copyright © 2011 CNA. All Rights Reserved. If the Optional Extended Reporting Period is purchased, it is non-cancelable and the entire premium shall be deemed fully earned at its commencement without any obligation by the Insurer to return any portion thereof. 5. No Separate Limit There is no separate or additional limit of liability for any Extended Reporting Period. E. TERRITORY Coverage shall apply to Claims made and Wrongful Acts committed anywhere. F. APPLICATION The Insureds represent and acknowledge that the statements contained in the Application and any materials submitted or required to be submitted therewith (which shall be maintained on file by the Insurer and be deemed attached to and incorporated into this Policy as if physically attached), are true and accurate and: 1. are the basis of this Policy and are to be considered as incorporated into and constituting a part of this Policy; and, 2. shall be deemed material to the acceptance of this risk or the hazard assumed by the Insurer under this Policy. This Policy is issued in reliance upon the truth and accuracy of such representations. In the event the statements, representations or information in the Application, including materials submitted or required to be submitted therewith, contains any misrepresentation or omission which materially affects either the acceptance of the risk or the hazard assumed by the Insurer under this Policy, this Policy shall be null and void. G. OTHER INSURANCE The Insurer will have no duty to defend any Claim that any other insurer has a duty to defend. If no other insurer defends, the Insurer will undertake to do so; but it will be entitled to the Insured's rights against all those other insurers. This Policy applies to the Damages or Claim Expenses that exceed the available limit of liability and any self insured retentions or retention amounts of any other insurance available to the Insured. If there is such other insurance covering the same Damages or Claim Expenses, the Insurer will pay only for the amount of covered Damages or Claim Expenses in excess of the amount due from that other insurance, but it will not pay more than the applicable Limit of Liability. This paragraph does not apply to any other insurance that was bought specifically to apply in excess of the Limits of Liability shown in the Declarations of this Policy. H. ESTATES, LEGAL REPRESENTATIVES AND DOMESTIC PARTNERS The estates, heirs, legal representatives and any Domestic Partner of a natural person Insured shall be considered Insureds under this Policy; provided, however, coverage is afforded to such estates, heirs, legal representatives and Domestic Partners only for a Claim arising solely out of their status as such and, in the case of a Domestic Partner, where such Claim seeks Damages from marital community property, jointly held property or property transferred from such Insured to the Domestic Partner. No coverage is provided for any act, error or omission of an estate, heir, legal representative or Domestic Partner. All terms and conditions of this Policy, including without limitation the retention, applicable to Damages or Claim Expenses incurred by the Insured shall also apply to Damages and Claim Expenses incurred by such estates, heirs, legal representatives, assigns and Domestic Partners. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 24 Copyright © 2011 CNA. All Rights Reserved. I. NO ACTION AGAINST INSURER No action shall be taken against the Insurer unless, as a condition precedent, there shall have been full compliance with all the provisions of this Policy nor until the amount of the Insureds obligation to pay shall have been finally determined either by final and nonappealable judgment against the Insureds after trial or by written agreement of the Insureds, the claimant and the Insurer. No person or organization shall have any right under this Policy to join the Insurer as a party to any Claim against the Insureds to determine the Insureds liability, nor shall the Insurer be impleaded by the Insureds or their legal representatives in any such Claim. J. ASSIGNMENT OF INTEREST Assignment of interest under this Policy does not bind the Insurer unless the Insurer’s consent to such assignment is endorsed to this Policy. K. COVERAGE FOR NEW SUBSIDIARIES 1. Other than an entity described in paragraph 2. below, if, after the effective date of this Policy the Insured Entity first has Management Control of any entity then such entity and its subsidiaries, directors, officers, trustees, managers, members, partners or employees who otherwise would thereby become an Insured, shall be covered under this Policy, subject to its terms and conditions. 2. If, after the effective date of this Policy, the Insured Entity first has Management Control of an entity where the total revenues (as reflected in the most recent audited consolidated financial statements of such entity and the Insured Entity) exceeds ten percent (10%) of the combined total revenues of all Insured Entities, as of the inception date of this Policy, then the Insurer, at its sole option upon submission of such information as the Insurer may require, and payment of any additional premium or amendment of the provisions of the Policy, may agree to provide coverage for such entity and its subsidiaries, directors, officers, managers, members, partners or employees. L. CHANGE OF STATUS OF INSUREDS 1. Takeover of the Named Insured In the event of a Takeover of the Named Insured, coverage under this Policy shall continue until this Policy is otherwise terminated, but only with respect to Claims for Wrongful Acts occurring before the effective date of the Takeover, unless: a. the Insurer is notified in writing of the Takeover prior to the Takeover effective date and agrees in writing to provide coverage for Wrongful Acts occurring on or after such effective date; and, b. the Named Insured accepts any additional terms, conditions and exclusions and pays any additional premium charge required by the Insurer. 2. Cessation of Subsidiary If any organization ceases to be a Subsidiary, coverage under this Policy or any renewal of this Policy, shall continue until this Policy is otherwise terminated, but only with respect to Claims for Wrongful Acts occurring before the effective date of such cessation, unless: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 25 Copyright © 2011 CNA. All Rights Reserved. a. the Insurer is notified in writing of such cessation prior to the effective date thereof and agrees in writing to provide coverage for Wrongful Acts occurring on or after such effective date; and, b. the Insured Entity accepts any special terms, conditions and exclusions and pays any additional premium charge required by the Insurer. M. SUBROGATION AND RECOVERY To the extent it pays any Damages or Claim Expenses, the Insurer shall be subrogated to all the Insureds rights of recovery therefor, including without limitation an Insureds right to indemnification or advancement from the Insured Entity. The Insureds shall execute all papers necessary to secure such rights, including executing any documents necessary to enable the Insurer effectively to bring suit in their name, and shall take no action which impairs the Insurer's rights of subrogation or recovery. N. NOTICES TO THE NAMED INSURED Any notices to the Named Insured under this Policy shall be provided to the Named Insured at the last known address and to its last known insurance agent or broker. If properly mailed to the Named Insured at such address, the date of mailing shall constitute the date such notice was given. O. CHANGES Notice to or knowledge possessed by any agent or other person acting on behalf of the Insurer does not effect a waiver or a change in any part of this Policy or stop the Insurer from asserting any right under the provisions of this Policy, nor shall the provisions be waived or changed except by written endorsement issued to form a part of this Policy. P. INSURED AUTHORIZATION The Insureds agree that the Named Insured will act on behalf of the Insureds with respect to giving of all notices to the Insurer (except notices provided in Section VI. CONDITIONS, paragraph B. NOTICE OF CLAIM, CIRCUMSTANCE OR NETWORK IMPAIRMENT/PRE-CLAIMS ASSISTANCE/DATE OF CLAIM ) the receipt of notices from the Insurer, the payment of the premiums, the receipt of any return premiums that may become due under this Policy, and the agreement to and acceptance of endorsements. Q. VALUATION All premiums, limits, retentions, and other amounts under this Policy are expressed and payable in United States of America currency. If any judgment, settlement or any part thereof are expressed or calculated in any other currency, payment of such amount due under this Policy will be made in the currency of the United States of America, at the rate of exchange published in The Wall Street Journal on the date the Insurer’s obligation to pay such is established, or, if not published on that date, on the date of next publication. R. BANKRUPTCY Bankruptcy or insolvency of any Insured does not relieve the Insurer of any of its obligations hereunder. If a liquidation or reorganization proceeding is commenced by the Named Insured and/or any other Insured Entity (whether voluntarily or involuntarily) under Title 11 of the United States Code (as amended), or any similar state, local or foreign law (collectively “Bankruptcy Law”) then, in regard to a covered Claim under this Policy, the Insureds hereby: DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 26 Copyright © 2011 CNA. All Rights Reserved. 1. waive and release any automatic stay or injunction to the extent it may apply in such proceeding to the proceeds of this Policy under such Bankruptcy Law; and, 2. agree not to oppose or object to any efforts by the Insurer or any Insured to obtain relief from any stay or injunction applicable to the proceeds of this Policy as a result of the commencement of such liquidation or reorganization proceeding. S. CONFIDENTIAL SOURCE/RETRACTION OF MATTERS Solely with respect to a Claim under Insuring Agreement A.2. Media Liability, the Insured’s rights under this Policy shall not be prejudiced by the Insured’s refusal to reveal the identity of a confidential source or to disclose documents or information obtained by the Insured during the course of any Wrongful Act as set forth in paragraph B. of the definition of Wrongful Act. The Insured shall have full discretion to retract or clarify all Matter. T. TRADE AND ECONOMIC SANCTIONS This Policy does not provide coverage for Insureds, transactions or that part of Damages or Claim Expenses that is uninsurable under the laws or regulations of the United States concerning trade or economic sanctions. U. PROOF, VALUATION AND PAYMENT OF FIRST PARTY LOSS 1. Proof of First Party Loss The Named Insured must submit a written proof of First Party Loss providing details relating to the particulars and composition of the amounts claimed in the event of a Network Impairment. The proof of loss shall be submitted with reasonable promptness, but in no event later than 6 months after the date initial notice of Network Impairment was submitted to the Insurer. The amount of First Party Loss shall be payable by the Insurer, to the Named Insured, within 60 days after the Insurer’s formal agreement to the amounts claimed in the proof of loss. 2. Examination of the Insured Books and Records Solely with respect to verification of First Party Loss, the Insured agrees to allow the Insurer to examine and audit the Insured Entity’s books and records that relate to this Policy, at any time during the Policy Period and up to 3 years thereafter. 3. Inspections and Surveys The Insurer has the right but is not obligated to do the following, on its own or through its independent contractors: A. make remote electronic scan inspections of all or any part of the Insured Entity’s Network or of the Network of any entities newly acquired by the Insured at any time; B. give the Insured reports on the conditions the Insurer finds; C. recommend changes to the Insured Entity’s Network; or, D. conduct loss control and prevention activity. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 EPS++ tech + pro + media + security + privacy GSL2302XX (Ed 6/11) Page 27 Copyright © 2011 CNA. All Rights Reserved. Any inspections, surveys, reports, or recommendations relates only to insurability and the premiums to be charged. The Insurer, by such inspections, surveys, reports, or recommendations, does not warrant that the Insured Entity’s Network is safe or in compliance with laws, regulations, codes or standards, domestic or foreign. This condition applies not only to the Insurer, but also to any rating, advisory, rate service, or similar organization which makes insurance inspections, surveys, reports or recommendations. Such inspections or surveys will be arranged with mutual consent of the Insured Entity and Insurer. 4. First Party Loss and Arbitration If the Insured and the Insurer disagree on the amount of First Party Loss sustained, either may make a written demand for an appraisal of such First Party Loss. If such demand is made, each party will select an appraiser. The appraisers will state separately the amount of First Party Loss sustained. If they fail to agree, the Insured and the Insurer will submit their differences to an impartial third appraiser jointly selected by both the Insured Entity and the Insurer. A decision agreed to by any two will be binding. The Insured Entity and the Insurer will each bear their own costs with respect to the selection and retention of their appraisals and any disputes arising out of the payment of First Party Loss. The Insurer and the Insured Entity shall jointly bear the costs of the third appraiser. Any appraisal of First Party Loss shall still be subject to all other terms, conditions and exclusions of this policy. V. HEADINGS The descriptions in the headings of this Policy are solely for convenience, and form no part of the terms and conditions of coverage. IN WITNESS WHEREOF, the Insurer has caused this Policy to be signed by its Chairman and Secretary at Chicago, Illinois, but the same shall not be binding upon the Insurer unless countersigned by a duly authorized representative of the Insurer. Chairman Secretary DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 CNA71810XX (11-12) Policy No: Page 1 Endorsement No: 9 Columbia Casualty Company Effective Date: Insured Name: Clubessential Holdings, LLC © CNA All Rights Reserved. AMENDED SUBROGATION AND RECOVERY PROVISION ENDORSEMENT In consideration of the premium paid for this Policy, it is understood and agreed that Section VI. CONDITIONS, paragraph M. SUBROGATION AND RECOVERY is amended to add the following new sentence: Notwithstanding the above, the Insurer’s right of subrogation shall not extend to the Named Insured’s customers with whom the Named Insured has, by written contract, agreed to eliminate such right of subrogation from the Named Insured’s professional liability insurance policies. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47 DocuSign Envelope ID: 57A293A7-E790-41D7-BF18-E42777ABBC47