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HomeMy WebLinkAboutKopis LLC dba Trenier International; 2018-10-09; USE19-618GSUSE19-618GS AGREEMENT FOR USE OF THE CARLSBAD SAFETY TRAINING CENTER (STC) BETWEEN THE CITY OF CARLSBAD AND KOPIS LLC DBA TRENER INTERNATIONAL 1. PARTIES AND DATE This Agreec}ent for use of the ~lsbad Safety Train~ Center (STC) ("Agreement") is entered into this th day of -c tcbol\ , Ol'f? , by and between the City of Carlsbad, a municipal corporation organized under the laws of the State of California with its principal place of business at 5750 Orion Street, Carlsbad, California 92010 ("City"), and Kopis LLC dba Trener International, a limited liability corporation, with its principal place of business at 6965 El Camino Real, Suite 105-643, Carlsbad, California 92009 ("Agency"). City and Agency are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. 2. RECITALS 2.1 Agency desires to use certain City facilities located at 5750 Orion Street in the City of Carlsbad, California, known as the Carlsbad Safety Training Center ("STC Facilities"); and 2.2 Agency desires to use the STC Facilities for the purposes of Firearms Training and other Law Enforcement Training Activities on or about November 1, 2018 ("Training Events"). 2.3 City is willing to allow the Agency to use the STC Facilities pursuant to the terms and conditions set forth below. 3. TERMS AND CONDITIONS 3.1 STC Facilities. City agrees to allow Agency to use the STC Facilities pursuant to this Agreement including the conditions, requirements and fees as described in Exhibit "A", Exhibit "B", Exhibit "C" and all STC Standard Operating Procedures (SOP), as may be amended from time to time by the City at its sole and absolute discretion, all as incorporated herein by this reference. The STC Facilities are subject to the needs of the City and as such the Agency's use of STC Facilities may be cancelled by the City at any time. In the event City determines, in its sole and absolute discretion, that the STC Facilities are needed for any City purposes, the Agency shall immediately vacate the STC Facilities upon notice by the City. It will also be understood that the STC Facilities will be made available on an "as is" basis. 3.2 Training Events. Agency represents and warrants that all attendees, participants, students, observers, instructors and any other persons brought to the STC Facilities by the Agency ("Agency Invitees") are qualified to participate in the Training Events, and use of the STC Facilities. The City retains the discretion to terminate this Agreement and requires all Agency Invitees to immediately vacate the STC Facilities if the Training Events or anyone's participation in the Training Events poses any kind of threat or liability to the City, the public, Agency Invitees or anyone else. Agency Invitees shall not be considered an employee or agent of City for any purpose related to the Training Events. City Attorney Approved Version 2/11/14 USE19-618GS elected officials, officers, employees, contractors, agents, volunteers, students, and all Agency Invitees hereby releases and forever discharges the City and each of its elected officials, officers, employees, contractors, agents, and volunteers from any and all known and unknown, certain or contingent, past, present or future obligations, liabilities, demands, claims, costs, expenses, debts, controversies, damages, actions, and causes of action of every nature, character, or description which they may have against the City, arising from or in any way related to the Training Events, use of STC Facilities or this Agreement. Furthermore, Agency assumes all risks associated with using the STC Facilities for the Agency's purposes, including but not limited to inspections of the facility prior to and after use, determination that the facilities "as is" status is appropriate for the Agency's Training Events, supervision and control of all Agency Invitees involved in the Agency's use of the STC Facilities including Agency Invitees, members of the general public and anyone else exposed during the period of time the Agency is using the STC Facilities. AGENCY HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET FORTH BELOW: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." BY SIGNNING BELOW, AGENCY HEREBY WAIVES THE PROVISIONS 0 SECTION 1542 IN CONNECTION WITH THE REL§~SED ATTERS. Sign~ture of Agency Representative ka-1'9<:?J /( R>vV) ~£E_.2') 7 Printed Name of Agency Representative 3.4 Indemnification / Hold Harmless. Agency shall indemnify, defend and hold harmless City, its elected officials, officers, employees, contractors, agents, and volunteers ("Indemnified Parties") from and against any and all claims, damages, demands, liability, costs, losses and expenses, including, without limitation, court costs and reasonable attorneys' fees and costs, arising out of, in connection with or in any way related to Agency's actions or inactions related to this Agreement, including without limitation any actions or inactions related to use of STC Facilities or the Training Events, to the fullest extent permitted by law. 3.5 Assumption of Risk Agreement and Participant Release. Agency shall ensure that all Agency Invitees observing or participating in the Training Events sign and execute a release, substantially in the same form as set forth in the attached Exhibit "B", incorporated by this reference ("Participant Release"). No one shall attend or participate in the Event or use the STC Facilities without signing and executing a Participant Release also commonly known as a Hold Harmless Agreement. City Attorney Approved Version 2/11/14 2 USE19-618GS 3.6 Insurance. Agency shall, at its sole expense, procure and maintain for the duration of its obligations under this Agreement insurance against claims for injuries to persons or damages to property which may arise from or be in connection with the STC Facilities and the Training Events or activities conducted by the Agency, its elected officials, officers, employees, contractors, agents, volunteers, students, and Agency Invitees. The insurance shall take the form of a commercial general liability policy or approved self-funding agreement, to include bodily injury, personal injury, and property damage coverage, written on an occurrence basis with a company reasonably acceptable to the City, in an amount not less than Two Million Dollars ($2,000,000) to cover any activities performed by any person under the permission granted herein and any damage or loss suffered or incurred by the City, its elected officials, officers, employees, contractors, agents, and volunteers resulting from such activity. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". Agency shall maintain Workers Compensation coverage in the statutorily required amounts, if applicable. Agency shall require its insurer to waive all rights of subrogation against City, its elected officials, officers, employees, contractors, agents, and volunteers, except for any liability resulting from the willful misconduct or grossly negligent acts of City. The Agency will provide evidence of such insurance coverage to City's satisfaction prior to initiating the Training Events. The Agency shall cause all such policies to be endorsed to add the City, its elected officials, officers, employees, contractors, agents, and volunteers as Additional lnsured's. Agency's self-funded programs will be required to provide evidence that meets City's requirements as determined at the sole and absolute discretion of the City. 3. 7 Governmental Approvals. Agency shall or has obtained all necessary and applicable federal, state and local approvals, certifications, and permits to conduct the Training Events prior to use of STC Facilities. City reserves the right to require Agency to provide proof regarding these approvals, certifications, and permits, if applicable. 3.8 Scheduling of Facility/ Cancellations. Agency may schedule use of the City's Facilities on an "as available", "first come first served" basis by contacting the City's Facility Manager. In the event Agency is unable to use its allotted time(s}, it shall, contact the City's Facility Manager within ten (10) business days. Agency will be invoiced for hours scheduled not actual hours used if sufficient notice for cancellation is not provided. 3.9 Term of Agreement. The term of this Agreement shall commence upon execution of this agreement by City, and shall terminate five (5) years from the date of commencement. It is also understood that the City may terminate this Agreement at any time for any or no reason. 3.10 Payments for Use of STC Facilities. City shall invoice Agency on an hourly fee based upon Agency scheduling and use of STC Facilities. All STC Facility use fees shall be in accordance with the STC Facility fee table which may be amended by the City from time to time. Agency shall remit payment in full to the attention of City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008, within thirty days (30) days of receipt of such invoice. A late charge equivalent to 5% of the unpaid balance shall be assessed on all accounts ten ( 10) or more days past due. Agency shall be liable for the payment at the full cost of the use of the STC Facilities for the hours scheduled for Training Events whether or not Agency subsequently uses the STC Facilities or not. City Attorney Approved Version 2/11/14 3 USE19-618GS 3.11 Accidents/ Damage Investigations. The Agency Safety Officer, as such person is described in the STC Facilities Standard Operating Procedures (SOP), shall immediately report any injury or non-injury accidents, equipment damage and/or negligent firearm discharges immediately to the City Facility Manager. The parties agree to fully and promptly cooperate in the investigations of injury or non-injury accidents, equipment damage and/or negligent firearm discharges arising from Agency's use of the STC Facilities. The City's Facility Manager will coordinate such investigations for the purpose of determining cause, responsibility and any physical or operational modifications or improvements deemed necessary to improve facility safety. In the event damage to the STC Facility requires repair and/or replacement, City shall affect such repair and present to the Agency an invoice for the cost of the repairs/replacement plus 5% (five percent) for City administrative costs. Agency shall remit payment in full to the attention of City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008, within thirty days (30) days of receipt of such invoice. A late charge equivalent to 5% of the unpaid balance shall be assessed on all accounts ten ( 10) or more days past due. 3.12 Facility Inspections/ Cleanup. The parties will conduct a joint inspection of STC Facilities before and after use. All damages will be annotated on inspection sheets provided by the City's Facility Manager to Agency. Agency shall be responsible for general cleanup of the STC Facilities following its use of the same. For purposes of this Agreement, "cleanup" for STC Facilities will be described in further detail in the STC Facilities SOP. 3.13 Notices. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this Agreement to be served on or given to either party to this Agreement shall be in writing and shall be deemed duly served or given when personally delivered to the party to whom it is directed or to any managing or executive officer or director of that party in lieu of personal service when deposited in the United States mail, first class postage prepaid, addressed as follows: If to Agency: Kopis LLC dba Trener International 6965 El Camino Real, Suite 105-643 Carlsbad, CA 92009 Attn: Mr. Duke Speed duke@trenerinternational.com If to City: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Attn: Janean Hawney Contract Administration 3.14 Survival. Agency's obligations to release, indemnify, defend, and hold harmless the City as set forth in this Agreement, shall survive expiration or termination of the term of this Agreement and shall remain in effect until there is no risk to the City of any liability for any claims or losses due to the use of the STC Facilities for the Training Events. 3.15 Interpretation. The provisions of this Agreement are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to the City. 3.16 Selection of Counsel. Agency's obligation to indemnify the City under this Agreement shall include the obligation of the Agency to defend City with legal counsel of City's own choosing. In the event City elects not to select such counsel, the designation of such counsel shall be made by the Agency but shall be subject to prior approval by City. City Attorney Approved Version 2/11/14 4 USE19-618GS 3.17 Entire Agreement. This written document contains the entire agreement of the parties and supersedes any prior oral or written statements or agreements between the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by the parties. 3.18 Waiver and Severability. No waiver of any default shall constitute a waiver of any other breach or default, whether of the same or of any other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by either party shall give the other party any contractual right by custom, estoppel or otherwise. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 3.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. 3.20 Authority; Binding on Successors and Assigns. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to enter into this Agreement and bind each respective party. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. Notwithstanding the foregoing, this Agreement may not be assigned by Agency unless City consents in writing to such assignment. 3.21 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Any action to interpret or enforce this Agreement shall be brought and maintained exclusively in the courts of and for San Diego County, California. [SIGNATURES ON NEXT PAGE] City Attorney Approved Version 2/11/14 5 USE19-618GS 4. AUTHORITY The individuals executing this Agreement and the instruments referenced in it, on behalf of Agency, each represent and warrant that they have the legal power, right and actual authority to bind Agency to the terms and conditions of this Agreement. CITY OF CARLSBAD By: Scott Chadwic City Manager Attest~wtib /(lJ/4)iJ~ ~arbara Engleson I)~ ~ity Clerk Proper notarial acknowledgment of execution by Agency must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President AGE~CY ~ By: Signatue .&;,mf) f. 5//£/) Name (Print) I ?d'L'ft ;,w') Title (Print) APPROVED AS TO FORM: Group B Secretary, Assistant Secretary, CFO, or Assistant Treasurer By: Signature Name (Print) Title (Print City Attorney Approved Version 2/11/14 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Sa. Y\ :U\e~O } On 09 ) 2.L\ I 7n\~ before me, Date ·'MC) V\ \ CA \\l\.c. C. '-<l n~vv ?v kl, c., Here Insert Name and Title of the Officer \ personally appeared 1<, \ GV\Gtvt2, R_. S~eed Nameprf ~ Signer(/) who proved to me on the basis of satisfactory evidence to be the person(t) whose name(1' is/a/'} subscribed to the within instrum_etJt and acknowledged to me that he/_,.(ie/~ey executed the same in his/hp/t~ir authorized capacity(~). and tha~_o/ his/h/r/t~ir signature(~ on the instrument the person{_¢, or the entity upon behalf of whicli the persony, acted, executed the ins(rument. Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. s;gnatu,~-~~ Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ~ t\~v~-e~ ± /~~-\ ~t.S Document Date: 09/2--::\ ,~ NumberofPages: ___ _ Signer(s) Other Than Named Above: _,()IJ......l...,.0,£~!.....J ....... ~----------------- Capacity(ies) Claimed by Signer(s) Signer's Name: D Corporate Officer -Title(s): ______ _ D Partner - D Limited D General D Individual D Trustee D Other: D Attorney in Fact D Guardian of Conservator Signer is Representing: _________ _ ©2017 National Notary Association Signer's Name: D Corporate Officer -Title(s): _______ _ D Partner - D Limited D General D Individual D Attorney in Fact D Trustee D Guardian of Conservator D Other: Signer is Representing: _________ _ EXHIBIT "A" SAFETY TRAINING CENTER FACILITY DESCRIPTION, CAPABILITIES AND LOCATION USE19-618GS 1. The Carlsbad Safety Training Center (STC) is a four-acre facility that provides training resources which can replicate emergency scenarios and high-risk training events that Joint First Responders may encounter when conducting public safety operations. The STC Facilities are predominantly used by firefighting and law enforcement agencies to maintain and enhance their First Responder capabilities and to increase the readiness of internal public safety networks. The training conducted at this facility is crucial to building a rapid and capable First Responder Agency that can respond to emergencies within the City of Carlsbad and outlying cities. 2. The STC Facilities consists of a primary training building which houses two indoor shooting ranges (25 yards and 100 yards), multiple storage areas, and three classrooms with audio visual systems, and a training room for computer generated training scenarios. The outside areas of the facility consist of a residential live fire burn prop, four story commercial tower with multiple live fire burn props, confined space training area, trench extrication area, vehicle extrication area, city streetscape, emergency vehicle training area (grinder), parking, and various equipment storage areas that house City of Carlsbad Police and Fire related equipment. 3. General Location Information: a. The STC is located at 5750 Orion Street, Carlsbad, CA 92010. b. U.S. Geological Survey (USGS) Information: -Map Sheet: San Luis Rey Quadrangle, California-San Diego (7.5 Minute Series) -Latitude and Longitude: N 33° 8' 16.106'' W 117° 16' 0.397" -Grid Reference System (10-digit/WGS-84 Datum): 11 S MS 75118 66596 City Attorney Approved Version 2/11 /14 7 USE19-618GS EXHIBIT "B" PARTICIPANT RELEASE (HOLD HARMLESS CERTIFICATION) I, ________________ (print name), have voluntarily requested that the City of Carlsbad ("City") allow me to use or observe the use of the facilities at the Carlsbad Safety Training Center and/or the various safety training apparatus located at 5750 Orion Street, Carlsbad, California, 92010, known as the Carlsbad Safety Training Center ("STC Facilities"), for the purposes of conducting Firearms Training and other Law Enforcement Training Activities on or about _________ ("Training Events"). I hereby acknowledge, understand and agree that the City is allowing the use of said STC Facilities for my sole benefit. I also acknowledge, understand and agree that by using STC Facilities I may be exposed to risks of damage to my person or property, including, but not limited to, personal property damage, personal bodily injury, mental or psychological effects, gunshot wounds, small explosions, strikes from bullet fragments and shell casings, falls from high structures, trip and snag hazards, falls on wet surfaces, lead contamination, falling debris, motor vehicle accidents, and/or other known and unknown hazards that may result in serious bodily injury or death. I understand, acknowledge and agree that such serious bodily injury or death may be caused, either directly or indirectly, in whole or in part, by the fact that I am present upon the STC Facilities site whether or not I may be participating in or observing a Training Event. I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I am fully aware of the risks and hazards inherent in using or observing the use of STC Facilities or participating in a Training Events, and I hereby accept and assume full responsibility for any and all risks of damage, injury, effects or death resulting to me or my property while using or observing the use of the STC Facilities, or participating in a Training Event, or resulting from the use or condition of STC Facilities, whether or not using STC Facilities, and whether or not the risks are known or unknown to me or to City. ___ (Initial) I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE, in consideration for the City allowing me to use or observe the use of STC Facilities or to participate in the Training Events, that I, my personal representatives, heirs, next-of-kin and assigns (collectively the "Releasers") hereby release, waive, discharge, and covenant not to sue or bring any claim or demand, whether administrative, judicial or otherwise, against the City and its elected officials, officers, employees, contractors, agents, and volunteers for any and all liability from and for any loss or damage to me or the other Releasers, and from and for any claims or demands therefor on account of injury to the person or property of me or the other Releasers, including, but not limited to, personal property damage, personal bodily injury, mental or psychological effects, or death, whether caused by the negligence or willful misconduct of me, the City, other participants in the Training Events, or anyone else while I participate in the Training Events, or the condition of STC Facilities and whether or not using STC Facilities, and whether or not the risks are known or unknown to me or the City. ___ (Initial) I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE to release on my behalf and on behalf of the Releasers any and all unknown claims. I understand and agree that the released claims include not only claims presently known to me and/or the Releasers, but also include all known and unknown, suspected and unsuspected, claims, rights, demands, actions, obligations, liabilities, and causes of action of every kind and character that would otherwise come within the scope of the claims released herein. I understand that I and/or the Releasers may hereafter discover facts different from what I/they now believe to be true, which if known, could have materially affected the terms of this release, waiver, indemnity and hold harmless certification, but we (the Releasers and I) nevertheless waive and relinquish any claims or rights City Attorney Approved Version 2/11/14 8 USE19-618GS based on such different or additional facts. With respect to the released claims, I knowingly and voluntarily waive and relinquish any and all rights or benefits that I and/or the Releasers may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." ___ (Initial) I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE to defend, indemnify, save and hold free and harmless the City and its elected officials, officers, employees, contractors, agents, and volunteers from any and all liability from loss, damage, cost or injury, including death, to any property or persons, including third parties, in any manner arising out of or incident to any acts, omissions or willful misconduct of me while I participate in the Training Events, whether while using STC Facilities, including without limitation the payment of attorneys' fees and costs (with attorneys of City's choosing, in its sole and absolute discretion). Further, I shall defend at my own expense, including attorneys' fees and costs (with attorneys of City's choosing, in its sole and absolute discretion), the City and its elected officials, officers, employees, contractors, agents, and volunteers in any action or proceeding, legal, administrative or otherwise, based upon such acts, omissions or willful misconduct. ___ (Initial) I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that this release, waiver, indemnity and hold harmless certification is intended to be as broad and inclusive as is permitted by the laws of the State of California, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. ___ (Initial) I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I have read, understand, and voluntarily sign this release, waiver, indemnity and hold harmless certification and have had the opportunity to review this certification with legal counsel, and I agree that no oral representations, statements or inducements apart from the foregoing written certification have been made, and I further agree this certification shall be binding on me and my personal representatives, heirs, assigns and next-of-kin. ___ (Initial) I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I am age 18 or older, and that I will strictly abide by all safety requirements and other instructions given to me by any and all City personnel and/or agency instructors at all times during my presence on the STC site and during my participation in any Training Events or use of STC Facilities. ___ (Initial) City Attorney Approved Version 2/11/14 9 USE19-61 BGS I HAVE CAREFULLY READ, UNDERSTAND, ACKNOWLEDGE AND AGREE TO THIS RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION. I UNDERSTAND THAT I AM GIVING UP VALUABLE LEGAL RIGHTS BY SIGNING THIS RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION. I HAVE AGREED TO SIGN THIS CERTIFICATION OF MY OWN FREE WILL. I UNDERSTAND THAT I MAY SEEK THE ADVICE OF AN ATTORNEY IN ANY MATTER CONNECTED WITH THIS RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION BEFORE SIGNING. PARTICIPANT SIGNATURE: By: Signature Printed Name Agency/Company Name Date City Attorney Approved Version 2/11/14 10 USE19-618GS EXHIBIT "C" FACILITY FEES Center - 1 Shootin $550 Safe Center -1 Shootin $1,100 Safet Center -2 Shootin $650 Safet Center -2 Shootin $1,250 Safet $296 Safet $528 $236 $418 $300 $600 $300 $600 $100 $145 Center -PriSim Trainin $250 Center -PriSim Trainin Simulator -Full Da $500 City Attorney Approved Version 2/11/14 11 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 09/26/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Nicholas Christman NAME: ACW Group LLC PHONE 808-535-5098 I rffc No}: 808-535-5055 IA/C No Ext\: 1000 Bishop Street #600 E-MAIL nchristman@acwgroup.com ADDRESS: Honolulu, HI 96813 INSURER/SJ AFFORDING COVERAGE NAIC# INSURER A: Certain_ Underwriters at Ugyd~ of London 15792 --------- INSURED INSURER B: Kopis LLC dba Trener International INSURERC: 6965 El Camino Real Ste 105-643 INSURER D: INSURER E: Carlsbad CA 92009 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR ,&~MEM~1 ,~~hl%Ww1 LIMITS LTR TYPE OF INSURANCE , .. c:n W\/n POLICY NUMBER A X COMMERCIAL GENERAL LIABILITY X PSH00730526 08/15/18 08/15/19 EACH OCCURRENCE $ 1,000,000 ~ D CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED PREMISES {Ea occurrence) $ 50,000 MED EXP (Any one person) $ 5,000 - PERSONAL & ADV INJURY $ Included - GEN'LAGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $ 2,000,000 =l DPRO-DLOC PRODUCTS -COMP/OP AGG $ 2,000,000 POLICY JECT OTHER $ A AUTOMOBILE LIABILITY PSH00730526 08/15/18 08/15/19 COMBINED SINGLE LIMIT $ 1,000,000 /Ea accident\ - ANY AUTO BODILY INJURY (Per person) $ --ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ -AUTOS f----AUTOS X X NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS /Per accident\ $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I I RETENTION$ $ WORKERS COMPENSATION I PER I I OTH- AND EMPLOYERS' LIABILITY STATUTE ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE D EL EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) EL DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ A Professional Liability X PSH00730526 08/15/18 08/15/19 $1 mil/$2mil agg DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) The CITY OF CARLSBAD is listed as an additional insured under the General Liability and Professional Liability policies listed above. 30 days notice of cancellation will be issued to the insured. CERTIFICATE HOLDER CANCELLATION City of Carlsbad SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 2560 Orion Way ACCORDANCE WITH THE POLICY PROVISIONS. Carlsbad, CA 92010 AUTHORIZED REPRESENTATIVE ?'~~ I © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD PROFESSIONS POLICY DOCUMENT cfcunderwriting.com AUSTRALIA CNJADA IRELAr"D IS RAEL U~llED Kl:'iGDOi/\ UNITED STATES REST OF WORLD PREAMBLE IMPORTANT: COVERAGE TRIGGERS. It is important for you to review this Policy carefully as the trigger for coverage, including when you must notify us of a cloim, under each Section and Insuring Clause may differ. This Policy is a contract of insurance between you and us. Your Policy contains all the details of the cover that we provide. This Policy consists of and must be read together with the Declarations page and any Endorsements. This Policy is not complete unless it is signed and a Declarations page is attached. The sections of this Policy are identified by the blue lines across the page with white upper case print, these are for information purposes only and do not form part of the cover given by this Policy. Terms in bold upper case print are references to specific Insuring Clauses, Sections or Conditions. Other terms in bold lower case print are defined terms and have a special meaning as set forth in the Definitions section and elsewhere. Words stated in the singular will include the plural and vice versa. In consideration of the premium and in reliance upon the information that you have provided to us prior to the commencement of this insurance, we agree to provide the cover as set out below: INSURING CLAUSES INSURING CLAUSE 1: PROFESSIONAL LIABILITY SECTION A: ERRORS AND OMISSIONS We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim fi1·st made against you during the period of the policy arising out of your business activities for any: a. negligent act, error, omission, misstatement or misrepresentation; b. breach of any contractual term implied by law concerning necessary quality, safety or fitness, or your duty to use reasonable care and skill; c. defamation, including but not limited to libel, slander, trade libel, product disparagement, injurious falsehood, emotional distress or outrage based on harm to the character or reputation of any person or entity; d. loss or damage to any documents in paper format in your care, custody or control; or e. other act, error or omission giving rise to civil liability, but not any breach of contract other than as specified above. We will also pay costs and expenses on your behalf. SECTION B: BREACH OF CONTRACT We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first made against you during the period of the policy as a direct result of any unintentional breach of a contract for the provision of your business activities. We will also pay costs and expenses on your behalf. SECTION C: SUB-CONTRACTOR VICARIOUS LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first mode against you during the period of the policy as a direct result of any act, error or omission by any sub-contractor engaged by you for the provision of your business activities. We will also pay costs and expenses on your behalf. SECTION D: CONTINGENT BODILY INJURY AND PROPERTY DAMAGE LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first mode against you during the period of the policy arising out of bodily injury or property damage caused as a direct result of your business activities. We will also pay costs and expenses on your behalf. SECTION E: INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first mode against you during the period of the policy arising out of the provision of your business activities for any: a. infringement of any intellectual property rights, breach of any intellectual property rights license acquired by you or failure to attribute authorship or provide credit; b. act of passing-off, piracy or plagiarism or any misappropriation of content, concepts, format rights or ideas or breach of a contractual worrnnty relating to intellectual property rights; c. misappropriation of a trade secret; d. invasion, infringement or interference with rights of privacy or publicity, including false light, public disclosure of private facts, intrusion, breach of confidence and commercial appropriation of name or likeness; or e. breach of agreement, breach of confidentiality or promissory estoppel, in connection with the failure to maintain the confidentiality of a source or materials furnished by a source or the failure to portray a source or a subiect in a certain light. We will also pay costs and expenses on your behalf. SECTION F: POLLUTION LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first mode against you during the period of the policy arising out of pollution caused as a direct result of your business activities. We will also pay costs and expenses on your behalf. SECTION G: REGULATORY COSTS AND FINES We agree to pay on your behalf costs and expenses and any fi1es or penalties as a result of any regulatory investigation first initiated against you during the period of the policy arising directly out of the provision of your business activities. However, we will not pay costs and expenses, fines or penalties in respect of any regulatory investigation affecting the wider environment in which you conduct your business activities, as opposed to any regulatory investigation solely affecting you. SECTION H: DISHONESTY OF EMPLOYEES We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first made against you during the period of the policy arising out of any dishonesty by any employee in the provision of your business activities. We will also pay costs and expenses on your behalf. SECTION I: PAYMENT OF WITHHELD FEES We agree to pay your withheld fees in the event that a client of yours brings or threatens to bring a claim against you that would be covered unde,· INSURING CLAUSE 1 for an amount greater than your withheld fees if you attempt to recover the withheld fees from them. Prior to payment of your withheld fees you must obtain written confirmation from the client that they will not bring a claim against you if you agree not to pursue them for your withheld fees and provide it to us. INSURING CLAUSE 2: CYBER EVENT COSTS SECTION A: NETWORK SECURITY AND PRIVACY LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including the establishment of any consumer redress fund and associated expenses) as a result of any claim as a direct result of a cyber event first discovered by you during the period of the policy. We also agree to pay on your behalf any fines, penalties and cord brand assessments including fraud recoveries, operational reimbursements, non-cooperation costs and case management fees which you become legally obliged to pay as a direct result of a payment card breach first discovered by you during the period of the policy. We will also pay costs and expenses on your behalf. SECTION B: INCIDENT RESPONSE COSTS We agree to pay on your behalf any reasonable sums necessarily incun·ed by you, or on your behalf, as a direct result of a cyber event first discovered by you during the period of the policy to: a. gain access to our 24/7 cyber incident response hotline; b. engage with our cyber incident response team who will coordinate the initial response; c. obtain initial advice and consultancy from our cyber incident response team, including threat intelligence in relation to the cyber event; and d. obtain initial remote support and assistance from our cyber incident response team to respond to the cyber event. SECTION C: LEGAL, FORENSIC AND BREACH MANAGEMENT COSTS We agree to pay on your behalf any reasonable sums necessarily incurred by you, or on your behalf, as a direct result of a cyber event which is first discovered by you during the period of the policy to: a. obtain legal advice and draft privacy breach notices; b. notify any appropriate regulatory body, respond to and defend any regulatory investigation and pay any fines and penalties imposed on you as a direct result of the regulatory investigation; c. engage with an external IT security consultant to identify the source and scope of the cyber event, contain and remove any malware discovered on your computer systems and conduct a forensic investigation of your computer systems where reasonable and necessary or as required by law or a regulatory body (including a requirement for a PCI Forensic Investigator); d. engage with a crisis communications consultant to obtain specific advice in direct relation to the cyber event; e. print and post appropriate notices for any individual affected by the actual or suspected cyber event or to send e-mail notices or issue substitute notices; and f. provide credit monitoring services, identity monitoring services, identity restoration services or identity theft insurance as appropriate to affected individuals including setting up a call center to manage inbound and outbound calls in direct relation to the cyber event. SECTION D: EXTORTION We agree to reimburse you for any ransom paid by you, or on your behalf, in response to an extortion demand first discovered by you during the period of the policy as a direct result of any threat to: a. introduce malware, or the actual introduction of malware, including Ransomware, into your computer systems; b. prevent access to your computer systems or data or any third party systems hosting your applications or data, including cloud computing providers; c. reveal your confidential information or confidential information entrusted to you; or d. damage your brand N reputation by posting folse or misleading comments about you on social media sites. SECTION E: SYSTEM DAMAGE AND RECTIFICATION COSTS We agree to pay on your behalf any reasonable sums necessarily incurred to repair and restore the data and application components of your computer systems that have been damaged as a direct result of a cyber event first discovered by you during the period of the policy. For the purposes of this Section we will only reimburse the following elements of your financial loss: a. the additional cost of employing contract staff or overtime costs for employees to rebuild your data, including the cast of data re-entry or data re-creation; b. the additional cost of employing specialist consultants, including IT forensic consultants, to recover your data or applications; and c. the additional cost of employing specialist consultants or overtime costs for employees working within your IT department to reconstitute your computer systems to the position they were in immediately prior to the cyber event. SECTION F: SYSTEM BUSINESS INTERRUPTION AND REPUTATIONAL HARM We agree to reimburse you for your financial loss sustained during the indemnity period as a direct result of a system outage first discovered by you during the period of the policy. This financial loss will only be covered where the system outage is a direct result of a cyber event and the system outage lasts for longer than the time franchise. For the purposes of this Section we will only reimburse those elements of your financial loss that constitute your actual loss sustained and additional expenditure including the reasonable and necessary: a. additional costs of sourcing your products or services from alternative sources in order to meet contractual obligations to supply your customers; b. additional costs of employing contract staff or overtime costs for employees in order to continue providing your business activities; c. additional costs of employing specialist consultants, including IT forensic consultants to diagnose the source of the system outage; and d. overtime costs for employees working within your IT department to diagnose and fix the source of the system outage. We also agree to reimburse you for your actual loss sustained during the reputational harm period as a direct result of the loss of current or future customers caused by damage to your reputation as a result of a cyber event first discovered by you during the period of the policy. SECTION G: LOSS ASSESSMENT COSTS We agree to pay on your behalf any reasonable sums necessarily incurred to determine the amount of your financial loss following an interruption to your business activities covered under INSURING CLAUSE 2 (SECTION F only). We will only pay these costs where they are incurred with an independent expert agreed by the claims managers. INSURING CLAUSE 3: COMMERCIAL GENERAL LIABILITY SECTION A: BODILY INJURY AND PROPERTY DAMAGE LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim arising out of bodily injury or property damage in the course of your business activities first occurring during the period of the policy. We will also pay costs and expenses on your behalf. SECTION B: PERSONAL AND ADVERTISING INJURY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim arising out of personal injury or advertising injury first occurring during the period of the policy. We will also pay costs and expenses on your behalf. SECTION C: PRODUCTS AND COMPLETED OPERATIONS LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim arising out of bodily injury or property damage first occurring during the period of the policy caused directly by any product. We will also pay costs and expenses on your behalf. SECTION D: TENANTS' LEGAL LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim arising out of property damage to premises leased to, hired by, on loan to or held in trust by you or otherwise in your care, custody or control first occurring during the period of the policy. We will also pay costs and expenses on your behali. SECTION E: MEDICAL EXPENSES We agree to pay medical expenses for bodily injury to a third party caused by an accident first occurring during the period of the policy in the course of your business activities, provided that: a. the third party, at the time of the accident, is not entitled ta benefits under any workers' compensation or disability benefits law or similar law; b. the medical expenses are incurred and notified to us within one year of the date of the accident; and c. the third party submits to examination, at our expense, by physicians of our choice and as often as we reasonably require. We will make these payments regardless of fault. SECTION F: EMPLOYEE BENEFITS LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim first made against you during the period of the policy arising out of any act, error or omission committed by you or on your behalf in the administration of your employee benefit program. We will also pay costs and expenses on your behalf. SECTION G: NON-OWNED AND HIRED AUTOMOBILE LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim arising out of bodily injury or property damage occurring during the period of the policy in the course of your business activities resulting from the use or operation of any automobile that is not owned in whole or in part by the company or licensed in the name of the company. We will also pay costs and expenses on your behalf. SECTION H: LIABILITY FOR DAMAGE TO HIRED OR LEASED AUTOMOBILES We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants' costs and expenses) as a result of any claim arising out of property damage to an automobile leased to or hired by you from a third party occurring during the period of the policy in the course of your business activities. We will also pay costs and expenses on your behalf. INSURING CLAUSE 4: COMMERCIAL PROPERTY SECTION A: PROPERTY DAMAGE We agree ta reimburse you for any reasonable sums necessarily incurred to repair or rebuild your premises as a direct result of damage ta your premises first occurring during the period of the policy. SECTION B: CONTENTS DAMAGE We agree to reimburse you for any reasonable sums necessarily incurred to repair or replace your contents that have been lost or damaged during the period of the policy. SECTION C: ADDITIONAL CONTENTS We agree to reimburse you for any reasonable sums necessarily incurred to repair or replace: a. contents in transit, including by parcel post and courier; b. contents while at an exhibition site or in the custody of a sales representative; c. materials, machinery and equipment that you have been contracted by a third party to install, provided you are legally liable for the materials, machineny and equipment and they are not left unattended for more than 30 consecutive days; d. tools that are used in connection with your business activities at or away from the premises; e. stock that has been sold by you to a third party on a deferred payment plan, however, the maximum amount we will pay is the limit of liability or an amount equal to any unpaid balance, whichever is less; and f. contents that you have leased, rented, loaned or entrusted to a third party for up to a maximum period of 30 consecutive days; g. contents that you have hired or leased and are legally liable for; h. locks and keys, provided this is necessary to maintain the security of your premises or safes; i. patterns, models, molds, plans and designs that are used in connection with your business activities; j. any trailer, provided that it was unattached from, being attached to, or being detached from, a motor vehicle when the damage occurred; and k. outdoor signs located on the premises; that have been lost or damaged during the period of the policy. SECTION D: ADDITIONAL EXPENSES We agree to reimburse you for any reasonable sums necessarily incurred: a. to make temporany repairs to, expedite permanent repairs for, or expedite permanent replacement of, your premises or contents; b. to remove any debris; c. to extract pollutants from land or water; d. for professional services including architects, surveyors and engineers; e. to establish the value of the damage to your premises or contents; f. to locate the source of any water or oil leak, including the repair of any subsequent damage as a direct result of locating the water or oil leak; g. to retrieve, restore or replace the data you need to continue your business activities if your business records and electronic data have been last or corrupted; h. for rental payments you are legally obliged to pay during any period which your premises are unusable; i. for any fire department charges you incur; j. to re-charge fire extinguishing equipment; k. for security guard services to temporarily safeguard your damaged premises; and I. for a ransom paid for information directly leading to a conviction for any act of arson; as a direct result of damage to your premises or contents, or the loss of your contents. SECTION E: NEWLY ACQUIRED OR CONSTRUCTED PROPERTY We agree to reimburse you for any reasonable sums necessarily incvrred to repair or rebuild any additional premises acquired 01· constructed by you during the period of the policy, and to repair or replace your contents at these premises, as a direct result of damage to the additional premises or contents first occurring during the period of the policy provided that you give us written notice within 60 days of the acquisition or commencement of construction and agree to any additional premium and terms of coverage required by us. SECTION F: ORDINANCE OR LAW We agree to reimburse you for the reasonable additional costs to repair or rebuild your premises to the minimum standards required to comply with the current building regulations and laws as a direct result of damage to your premises first occurring during the period of the policy INSURING CLAUSE 5: BUSINESS INTERRUPTION SECTION A: ACTUAL LOSS SUSTAINED We agree to reimburse you for your actual loss sustained during the indemnity period as a direct result of an interruption to your business activities caused by: a. damage to your premises or contents, other than damage causing failure in the supply of water, gas, electricity, telephone or internet to your premises; b. damage to the property of one of your suppliers, other than a supplier of water, gas, electricity, telephone or internet; or c. failure in the supply of water, gas, electricity, telephone or internet to your premises for more than 24 consecutive hours os a direct result of damage to your premises or the property of your supplier of water, gas, electricity, telephone or internet; first occurring during the period of the policy. SECTION B: PREVENTION OR RESTRICTION OF ACCESS TO PREMISES We agree to reimburse you for your actual loss sustained during the indemnity period as a direct result of an interruption to your business activities caused by: a. damage to third party property which prevents access to your premises; or b. prevention or restriction of access to your premises by order of any governmental or law enforcement agency; first occurring during the period of the policy. SECTION C: RENTAL INCOME We agree to reimburse you for your actual loss sustained during the indemnity period as a direct result of a reduction in your rental income caused by damage to your premises first occurring during the period of the policy. SECTION D: EXTRA EXPENSE We agree to reimburse you for any reasonable sums over ond above your normal operating expenses incurred to: a. mitigate an interruption to and continue your business activities during the indemnity period, provided that the costs are less than the expected actual loss sustained had these measures not been taken; and b. re-locate to alternative premises during the indemnity period, ii you and we agree that it is not practicable or reasonable for you to repair or rebuild the damaged premises. SECTION E: NEWLY ACQUIRED OR CONSTRUCTED PROPERTY We agree to reimburse you for your actual loss sustained during the indemnity period as a direct result of an interruption to your business activities caused by damage to any additional premises acquired or constructed by you during the period of the policy, provided that you give us written notice within 60 days of the acquisition or commencement of construction and agree to any additional premium and terms of coverage required by us. SECTION F: PROFESSIONAL FEES We agree lo reimburse you for any reasonable sums necessarily incurred for professional fees to establish the value of your actual loss sustained as a direct result of an interruption to your business activities. INSURING CLAUSE 6: LOSS MITIGATION In respect of INSURING CLAUSE 1 only, we agree to reimburse you for any reasonable costs necessarily incurred by you with our prior written agreement (which will not be unreasonably withheld) in respect of measures taken by you for the sole purpose of mitigating a claim for which you would be entitled to indemnity under this Policy had these measures not been taken, provided that: a. the costs in respect of measures taken by you to mitigate the claim are less than the expected value of the claim; and b. the costs do not include any provision for salaries or other remuneration of employees, any provision for your loss of profit or any provision for your normal operating expenses. INSURING CLAUSE 7: COURT ATTENDANCE COSTS We agree to reimburse you for any reasonable sums necessarily incurred by you with our prior written agreement (which will not be unreasonably withheld) to attend court or any tribunal, arbitration, adjudication, mediation or other hearing in connection with any claim for which you are entitled to indemnity under this Policy. INSURING CLAUSE 8: REPUTATION AND BRAND PROTECTION We agree to reimburse you for any reasonable sums necessarily incurred with our ptfor written agreement (which will not be unreasonably withheld) for the services of a public relations consultancy to avert or mitigate damage to your reputation or brand as a direct' result of any media report that names you and publicizes an act or event that is the subject of a claim for which you are entitled to indemnity under this Policy. HOW MUCH WE WILL PAY The maximum amount payable by us in respect of each Section and each Insuring Clause will not exceed the limit of liability. In respect of INSURING CLAUSES 1, 2 and 3, where cover is provided under multiple Sections, only one limit of liability will apply to that claim and this will be the highest limit of liability of the Sections under which cover is provided. Where more than one claim under this Policy arises from the same original cause or single source or event, all of those claims will be deemed to be one claim and only one limit of liability will be payable. We may at any time pay to you in connection with any claim the amount of the limit of liability (after deduction of any amounts already paid). Upon that payment being made we will relinquish the conduct and control of the claim and be under no further liability in connection with that claim except for the payment of costs and expenses incurred prior to the date al such payment (unless the limit of liability is stated to be inclusive of costs and expenses). If costs and expenses are stated in the Declarations page to be in addition to the limit of liability, or if the operation of local lows require costs and expenses to be paid in addition to the liry,it of liability, and if a damages payment in excess of the limit of liability has to be made to dispose of any claim, our liability for costs and expenses will be in the same proportion as the limit of liability bears to the total amount of the damages payment. In respect of INSURING CLAUSE 4 (SECTIONS A and B only), the co-insurance percentage is 85%. This means that if the amount insured for any building address is less than 85% of the total cost to repair, replace or rebuild your premises or contents at that building address, the amount insured will be reduced in the same proportion that it bears to the co-insurance percentage amount. Example for calculating under insurance: a. Total cost to repair, replace or rebuild all of your premises at building address l = $500,000; b. 85% of $500,000 = $425,000; c. Amount insured for premises at building address l = $400,000; d. Therefore if a $450,000 loss occurs at the premises at building address l, we would pay $376,470; e. This has been calculated as the amount insured / co-insurance percentage amount of the total cost to repair, replace or rebuild x amount insured ($400,000 / $425,000 x $400,000 = $376,470). If we pay to replace your contents, we will do so on a new for old basis. YOUR DEDUCTIBLE We will only be liable for that part of each and every claim which exceeds the amount al the deductible. If any expenditure is incurred by us which falls within the amount of the deductible, then you will reimburse that amount to us upon our request. Where more than one claim under this Policy arises from the same original cause or single source or event all of those claims will be deemed to be one claim and only one deductible will apply. Where cover is provided under multiple Sections or multiple Insuring Clauses only one deductible will apply to that claim and this will be the highest deductible of the Sections under which cover is provided. DEFINITIONS l. "Actual loss sustained" means your income that, had the incident which gave rise to the claim not occurrnd, would have been generated directly from your business activities (less sales tax) during the indemnity period, less: a. actual income (less sales tax) generated directly from your business activities during the indemnity period; and b. any cost savings achieved as a direct result of the reduction in income. 2. "Additional expenditure" means costs incurred by you as a direct result of the complete or partial failure of your business activities over and above your normal operating expenses where these costs are designed to minimize your actual loss sustained and maintain continuity of your business activities, subject to the costs incurred being less than the potential actual loss sustained during the indemnity period had the costs not been incurred. 3. "Administration" means a. advising employees, including their dependents and beneficiaries, in respect of your employee benefit program; b. handling records in respect of your employee benefit program; and c. effecting enrolment or termination of any employee's participation in a plan included in your employee benefit program. 4. "Advertising injury" means a. oral or written publication of defamatory content; b. oral or written publication of content that violates a person's right of privacy; or c. infringement of copyright, trade dress, slogan or a third party's advertising idea; in your adve,iising or promotional material. 5. "Approved claims panel providers" means the approved claims panel providers stated in the Declarations page. 6. "Bodily injury" means death, bodily injury, mental injury, illness or disease. 7. "Building address" means a building address stated in the Commercial Property and Business Interruption Sub-limits Declarations page. 8. "Business activities" means the business activities stated in the Declarations page. 9. "Claim" means a. a written demand for compensation; b. a written request for a retraction or a correction; c. a threat or initiation of a lawsuit; and d. in respect of INSURING CLAUSE 2 (SECTION A only), a regulatory investigation; made against you. l 0. "Claims managers" means the claims managers stated in the Declarations page. l l. "Client means any third party with whom you have a contract in place for the supply of your business activities in return for a fee, or where a fee would normally be expected to be paid 12. "Cloud computing provider'' means a third party that provides you with hosted computing services accessed across the internet or dedicated network links including infrastructure, platform, file storage and application level services. 13. "Company" means the company named as the Insured in the Declarations page or any subsidiary. 14. "Computer systems" means all electronic computers including operating systems, software, hardware and all communication and open system networks and any data or websites wheresoever hosted, including cloud computing providers, off-line media libraries and data back- ups and mobile devices including but not limited to smartphones, iPhones, tablets or personal digital assistants. 15. "Contents" means items that are used primarily in connection with your business activities and are not permanently attached to a building that you own or are legally responsible for, including: a. improvements made to the premises by you as a tenant, including decorating, flooring, internal fixtures and fittings, external signs, aerials and satellite dishes; b. computers and ancillary equipment (including monitors, keyboards, printers and software); c. television, video, photographic, photocopying, surveying and telecommunications equipment; d. goods held in trust, stock and samples; e. wines, spirits and tobacco kept for entertainment purposes; f. works of art or precious metals; g. valuable documents in paper format; h. heating oil contained in fixed tanks in the open at your premises; i. refrigeration, ventilation, cooking, dishwashing and laundry appliances; j. portable contents and contents while in transit; and k. cash, bank and currency notes, checks, bankers drafts, share and bond certificates, provided they are kept in a locked safe, in transit or at the home of an employee. "Contents" also means the personal belongings of any employee or visitor whilst at your premises, provided they are not covered under any other insurance. 16. "Continuity date" means the inception date or if you have maintained uninterrupted insurance of the same type with us, the date this insurance was first incepted with us. 17. "Costs and expenses" means a. third party legal and professional expenses (including disbursements) reasonably incurred in the defense of claims or circumstances which could reasonably be expected to give rise to a claim or in quashing or challenging the scope of any injunction, subpoena or witness summons; b. any post judgment interest; and c. the cost of appeal, attachment and similar bonds including bail and penal bonds. Subject to all costs and expenses being incurred with the claims managers' prior written agreement (which will not be unreasonably withheld). 18. "Cyber event" means any actual or suspected unauthorized system access, electronic attack or privacy breach, including denial of service attack, cyber terrorism, hacking attack, Trojan horse, phishing attack, man-in-the-middle attack, application-layer attack, cam promised key attack, malware infection (including spyware or Ransomware) or computer virus. 19. "Cyber incident response hotline" means the cyber incident response hotline stated in the Declarations page. 20. "Cyber incident response team" means the cyber incident response team accessible on the cyber incident response hotline. 21. "Deductible" means the amount stated as the deductible in the Declarations page. 22. "Earth movement" means any type of earth movement, including earthquake, subsidence, landslide, erosion or the expansion or contraction of soil. Earth movement does not mean any sinkhole collapse. 23. "Employee" means any employee of the company, any volunteer working for the company and any individual working for the company as an independent contractor. 24. "Employee benefit program" means the company's insurance, pension or other benefit programs. 25. "Expiry date" means the expiry date stated in the Declarations page. 26. "Flood" means a. surface water, underground water, waves, tides, tidal waves, tsunamis or overflow of any body of water; b. mudslide or mudflow; or c. water or sewerage from a backed up sewer, sump, septic tank or drain. 27. "Inception date" means the inception dote stated in the Declarations page. 28. "Indemnity period" means the period starting from: a. in respect of INSURING CLAUSE 2 (SECTION A only), the first occurrence of a system outage; b. in respect of INSURING CLAUSE 5, the: i. date the damage was first discovered; ii. date the p1·evention of access first occurred; or iii. initial 24 consecutive hours you have no water, gas, electricity, telephone or internet services has passed; and lasting for the indemnity period stated in the Declarations page. 29. "Intellectual property rights" means any intellectual property right including, but not limited to, copyright, trademark, trade dilution, trade dress, design rights, domain name rights, moral rights, service mark or service name, but not including patent. 30. "Limit of liability" means if expressed in the Declarations page as: a. "limit of liability" or "amount insured", the maximum amount payable by us in respect of each claim; or b. "aggregate limit of liability" or "aggregate amount insured", the maximum amount payable by us in respect of all claims under this Policy. 31. "Medical expenses" means reasonable and necessary expenses for: a. first aid administered at the time of an accident; b. medical, surgical, x-ray and dental services, including prosthetic devices; and c. ambulance, hospital, professional nursing and funeral services. 32. "Payment card breach" means an actual or suspected unauthorized disclosure of payment car·d data stored or processed by you arising out of an electronic attack, accidental disclosure or the deliberate actions of a rogue employee. "Payment card breach" does not mean a situation where payment card data is deliberately shared with or sold to a third party with the knowledge and consent of a senior executive officer. 33. "Period of the policy" means the period between the inception date and the expiry date or until the Policy is canceled in accordance with CONDITION 5. 34. "Personal injury" means a. false arrest, detention or imprisonment; b. malicious prosecution; or c. wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies. 1· 35. "Pollutants" means any solid, liquid, gaseous, radiological or thermal irritant, toxic or hazardous substance, or contaminant including, but not limited to smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste materials, including recycled, reconditioned or reclaimed materials. 36. "Pollution" means the discharge, dispersal, release, migration, seepage or escape of pollutants. 37. "Premises" means a. the building; b. any completed extension to the building; c. any permanently installed machinery and equipment; d. any permanently attached fixtures and fittings; e. landlord's fixtures and fittings; f. retaining walls, outdoor walls, gates, fences, yards, car parks, roadways and pavements; g. trees, shrubs, plants and lawns; h. piping, ducting, cables, wires and accessories extending to the public mains that you are responsible for; and i. fixed glass in windows, doors, skylights, mirrors fixed to the building, glass showcases and shelves fixed to the building, sanitary fixtures and fittings and other fixed glass; at the building address. 38. "Premium" means the amount stated as the premium in the Declarations page and any subsequent adjustments. 39. "Privacy breach" means an actual or suspected unauthorized disclosure of information arising out of an electronic attack, accidental disclosure, theft or the deliberate actions of a rogue employee or third party, including Personally Identifiable Information (PIil, Protected Health Information (PHI) and payment card information. ''Privacy breach" does not mean a situation where information is deliberately shared with or sold to a third party with the knowledge and consent of a senior executive officer. 40. "Product" means any tangible property that has been manufactured, altered, distributed or installed by you or on your behalf. 4 l . "Property damage" means direct physical damage to, destruction of, loss of possession or loss of use of tangible property. 42. "Regulatory investigation" means a formal hearing, official investigation, examination, inquiry, legal action or any other similar proceeding initiated by a governmental, regulatory, law enforcement, professional or statutory body against you. 43. "Rental income" means a. the anticipated gross rental income from tenant occupancy of your premises; b. the amount of all charges which are the legal obligation of the tenants, which would otherwise be your obligation; and c. the lair rental value of any portion of your premises which is occupied by you. 44. "Reputational harm period" means the period starting from when the cyber event is first discovered and lasting for the period stated as the reputational harm period in the Declarations page. 45. "Retroactive date" means the retroactive date stated in the Declarations page. 46. "Senior executive officer" means board members, C-level executives, in-house lawyers and risk managers of the company. 47. "Subsidiary" means any entity which the company has majority ownership on or before the inception date. 48. "System outage" means a degradation in the performance of your computer systems which renders them incapable of supprnting their normal business function. 49. "Third party" means any person who is not an employee or any legal entity that is not the company. 50. "Time franchise" means the number of hours stated as the time franchise in the Declarations page. 51 . "We/our/us" means the underwriters stated in the Declarations page. 52. "Withheld fees" means any contractually due fee that your client refuses to pay you, but excluding any part of the fee that represents your profit or mark-up or liability for taxes. 53. "You/your" means a. the company; b. any past, present or future employees solely acting in the normal course of the company's business activities; c. the estates, heirs, legal representatives or assigns of any employee in the event of their death, incapacity, insolvency or bankruptcy but only with respect to any act, error or omission committed or alleged to have been committed by the employee while acting in their capacity as employee; and d. the parent, spouse, domestic partner, civil partner or child of any employee but only in respect of any claim made against them by reason of: EXCLUSIONS i. their status as parent, spouse, domestic partner, civil partner or child of the employee; or ii. their ownership or interest in property which the claimant seeks as recovery for an alleged act, error or omission committed by the employee wh,le acting in their capacity as employee. We will not make any payment under this Policy: EXCLUSIONS RELATING TO PROFESSIONAL LIABILITY In respect of INSURING CLAUSE 1 only: 1 . Workmanship arising directly out of any physical workmanship in manufacture, fabrication, construction, erection, installation, assembly, alteration, servicing, remediation, repair, demolition or disassembly (including any materials, parts or equipment furnished in connection therewith) by you or on your behalf. EXCLUSIONS RELATING TO CYBER EVENT COSTS In respect of INSURING CLAUSE 2 only 2. Betterment which results in you being in a better financial position or you benefitting from upgraded versions of your computer systems as a direct result of the event which gave rise to the claim under this policy. However, in the event of a hacking attack, malware infection or computer virus, when rebuilding your computer systems we will pay the additional costs and expenses incurred to install a more secure and efficient version of the affected computer system, provided that the maximum amount we will pay is 25% more than the cost that would have been incurred to repair or replace the original model or license. Under no circumstances will we pay the cost of acquiring or installing computer systems which did not form a part of your computer systems immediately prior to the incident which gave rise to the claim. 3. Bodily injury arising directly or indirectly out of bodily injury. However, this Exclusion will not apply to INSURING CLAUSE 2 (SECTION A only) for any claim as a direct r·esult of mental iniury or emotional distress. 4. Core internet infrastructure failure arising directly from a failure, material degradation or termination of any core element of the internet, telecommunications or GPS infrastructure that results in a regional, countrywide or global outage of the internet, including a failure of the core DNS root se1-vers, satellite network or the IP addressing system or an individual state or non-state actor turning off all or part of the internet. 5. Power failure arising directly or indirectly from any failure in the powe1· supply, including that caused by any surge or spike in voltage, electrical current or transferred energy. 6. Property and hardware costs far any tangible property repair or replacement including the cost of repairing any hardware or replacing any tangible property or equipment that farms part of your computer systems. However, where repairing or replacing hardware or tangible property or equipment is a more practical and cost effective solution than installing new firmware or software onto your existing components, we will pay the costs and expenses required to do so. 7. Property damage arising directly or indirectly out of property damage. 8. Regular hours staff costs for normal salary and bonus costs paid to employees or senior executive officers working their regular, contracted hours. In respect of INSURING CLAUSE 2, SECTIONS E and F: 9. Business interruption liability for that part of any claim that constitutes actual or alleged liability to a third party, or legal costs in the defense of any claim, including customer compensation. EXCLUSIONS RELATING TO COMMERCIAL GENERAL LIABILITY In respect of INSURING CLAUSE 3 only: l 0. Employers' liability arising directly or indirectly out of bodily injury to employees. l l . Faulty workmanship for the cost to repair or replace, including any ensuing financial loss: a. that part of any property that has been damaged by you, or a third party operating on your behalf, during its construction, distribution or installation; b. that part of any property as a direct result of faulty workmanship by you, or a third party operating on your behalf, during its construction or installation; ar c. any undamaged property that contains any product, unless the product which the property contains has been damaged as a direct result of a sudden, unintended and unexpected incident after it has left your care, custody or control. 12. Financial loss arising directly or indirectly out of third party financial loss, other than third party financial loss directly resulting from bodily injury, personal injury, advertising injury or property damage. l 3. Land or water arising directly or indirectly from damage to land or water within or below the boundaries of any land or premises p1·esently or at any time previously owned or leased by you or otherwise in your care, custody or control. 14. Marine and aviation arising directly or indirectly from the ownership, possession or use by you, or on your behalf, of any: a. watercraft, other than any hovercraft, in excess of IO meters in length; or b. aircraft, drone, hovercraft, offshore installation, offshore rig or offshore platform. 15. Property in your care, custody or control arising directly or indirectly out of damage to third party prooerty which is in your care, custody or control. However, this Exclusion will not apply to INSURING CLAUSE 3 (SECTIONS D and H only). In respect of INSURING CLAUSE 3, SECTION B 1 6. Content advertised prior to the continuity date arising directly or indirectly out of any advertisement that was first published prior to the continuity date. In respect of INSURING CLAUSE 3, SECTION F: l 7. Benefit laws arising directly or indirectly out of your failure to comply with the mandatory provisions of any law concerning workers' compensation, unemployment insurance, social security, disability benefits or pension benefits. 18. Employee benefit program advice arising directly or indirectly from advice given to any perso~ to participate or not to participate in any plan included in your employee benefit program or the failure of any investment to perform as represented by you. EXCLUSIONS RELATING TO COMMERCIAL PROPERTY In respect of INSURING CLAUSE 4 only: l 9. Excluded property for the costs to repair, replace or rebuild: a. the foundations of the premises; b. the foundations of any structure, machine1·y or boiler contained inside of the premises if they are below the lowest basement floor or gmund level if there is no basement; or c. land or growing crops. EXCLUSIONS RELATING TO ALL INSURING CLAUSES 20. Advertising injury arising directly or indirectly out of advertising injury. However, this Exclusion will not apply to INSURING CLAUSE 3 (SECTION B only). 21 . Antitrust for or arising out of any actual or alleged antitrust violation, restraint of trade, unfair competition, false, deceptive or unfait· trade practices, violation of consumer protection laws or false or deceptive advertising other than: a. where specifically covered under INSURING CLAUSE 2 for which you have purchased cover; or b. any covered portion of any claim based on your alleged unauthorized use of a third party's trademark. 22. Asbestos arising directly or indirectly out of the manufacturing, mining, use, sale, installation, removal, distribution of or exposure to asbestos, materials or products containing asbestos or asbestos fibers or asbestos dust. However, this Exclusion will not apply to INSURING CLAUSE l. 23. Associated companies 24. Auto a. in respect of any claim made by any company, firm or partnership in which the company has greater than a 15% executive or financial interest, unless the claim emanates from an independent third party; b. in respect of any claim made by any company, firm, partnership or individual which has greater than a 15% executive or financial interest in the company, unless the claim emanates from an independent third party; c. arising out of or resulting from any of your activities as a trustee, partner, officer, director or employee of any employee trust, charitable organization, corporation, company or business other than that of the company; or d. in respect of any claim made by or on behalf of the company against a third party. arising directly or indirectly from the ownership, possession or use by you or on your behalf of any motor vehicle or trailer other than bodily injury or property damage: a. caused by the use of any tool or equipment forming part of or attached to or used in connection with any motor vehicle or trailer; b. occurring beyond the limits of ony carriageway or thoroughfare and caused by the loading or unloading of any motor vehicle or trailer; c. arising out of the use of any motor vehicle or trailer temporarily in your custody or control for the purpose of parking; or d. occurring beyond the limits of any carriageway or thoroughfare and caused by the use of any unlicensed vehicle, including but not limited to snowmobiles and all-terrain vehicles, in the course of your business activities; provided always that we will not make any payment in respect of any legal liability for which compulsory insurance or security is required by legislation or for which a government or other authority has accepted responsibility. However, this Exclusion will not apply to INSURING CLAUSE 3 (SECTIONS G and H only). 25. Breach of contract arising directly out of any breach of contract. However, this Exclusion will not apply: a. to INSURING CLAUSE 1 (SECTION B only); or b. if liability would have attached in the absence of that contract. 26. Catastrophe perils in respect of INSURING CLAUSES 4 and 5, arising: a. directly or indirectly out of earth movement or flood, except for: i. ensuing financial loss or property damage which results directly from fire, explosion, smoke ar leakage from fire protective equipment; or ii. ensuing property damage while in transit; b. directly out of windstorm, including any windstorm which is given a name by the National Hurricane Center, or hail, regardless of any other cause or event that contributes concurrently or in any sequence to the financial loss or property damage; or c. directly or indirectly out of rain, snow, sand or dust, whether driven by wind or not, if that financial loss or property damage would not have occurred but for the windstorm or hail. 2 7. Chargebacks for any credit card company or bank, wholly or partially, reversing or preventing a payment transaction. However, this Exclusion will not apply to INSURING CLAUSE 2 (SECTION A only). 28. Collection of private data without consent arising directly or indirectly from your actual or alleged failure to obtain agreement from any private individual before collecting, storing or processing any of their personal information, including but not limited to internet search history and internet browsing habits. 29. Cyber events arising directly or indirectly out of any cyber event. However, this Exclusion will not apply to INSURING CLAUSE 2. 30. Defamation arising directly or indirectly out of defamation. However, this Exclusion will not apply to INSURING CLAUSES 1 (SECTION A only) and 3 (SECTION B only). 31 . Directors and officers liability arising out of any personal liability incurred by your senior executive officers when they are acting in that capacity or managing you, or arising from any statement, representation or information regarding your business contained within any accounts, reports or financial statements. 32. Employment practices liability arising out of or resulting from: a. any employer-employee relations, policies, practices, acts, omissions, any actual or alleged refusal to employ any person, or misconduct with respect to employees; b. any acts or omissions committed by you which are in breach of, or are alleged to be in breach of, any terms and conditions of an employment contract, whether express or implied; or c. any actual or alleged theft or misappropriation of any trade secret by an employee from a former employer of theirs. 33. Equipment breakdown in respect of INSURING CLAUSES 4 and 5; arising directly from the breakdown, explosion or collapse of any electrical or mechanical equipment including air conditioning, refrigeration, boiler, computer and communication equipment. 34. ERISA based upon the Employment Retirement Income Security Act of 197 4, and any amendment thereto, or any rules or regulations promulgated thereunder. 35. Excluded causes in respect of INSURING CLAUSES 4 and 5, arising directly or indirectly from: a. wear and tear, an inherent defect, rot, vermin, infestation, ground heave, subsidence, landslip or any othe1· gradually operating cause; or b. frost, other than property damage due to water leaking from burst pipes forming part of the permanent internal plumbing provided the premises are occupied and in use. 36. Extended warranty arising directly or indirectly out of any extended warranty agreement, unless liability would have attached in the absence of that agreement. 37. Insolvency arising out of or relating directly or indirectly to your insolvency or bankruptcy, or the insolvency or bankruptcy of any third party. However, your insolvency will not relieve us of any of our legal obligations under this contract of insurance where this insolvency does not give rise to a claim under this Policy. 38. Intellectual property rights arising directly or indirectly out of any infringement of intellectual property rights. However, this Exclusion will not apply to INSURING CLAUSES 1 (SECTION E only) or 3 (SECTION B only). 39. Known claims and circumstances arising out of any actual or suspected cyber event, claim or circumstance which might give rise to a claim under this Policy of which a senior executive officer was aware of, or ought reasonably to have been aware of, prior to the continuity date, including any claim or circumstance notified to any other insurer. 40. Legal action where an action for damages is brought in a court of law outside the legal action territories stated in the Declarations page, or where an action is brought in a court of law within those territories to enforce a iudgment outside of those territories whether by way of reciprocal agreement or otherwise. 4 l. Liquidated damages, service credits and penalty clauses for liquidated damages or service credits, or arising out of penalty clauses unless you would hove been liable in the absence of any contract stipulating the liquidated damages or service credits or penalty clauses. 42. Loss of economic value for the reduction in economic or market value (including loss of potential future sales) of any of your intellectual property assets. 43. Misleading advertising arising directly or indirectly from any advertisement, promotion or product description that is actually or alleged to be false or misleading. However, this Exclusion will not apply to INSURING CLAUSES 2 (SECTION A only) and 3 (SECTION B only). 44. Nuclear arising directly or indirectly from or contributed to by: a. ionizing radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; or b. the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component. 45. Other insurance for which you are entitled to indemnity under any other insurance except for: a. any additional sum which is payable over and above the other insurance where that insurance has been declared to us1 or b. any contribution that we are obliged to make by law and that contribution will be in proportion to the indemnity available under the Policies. 46. Patent infringement arising directly or indirectly out of the actual or alleged infringement of any patent or inducing the infringement of any patent. 4 7. Payment card industry related fines, penalties and assessments fo1· fines, penalties and card brand assessments, including fraud recoveries, operational reimbursements, non-cooperation costs and case management fees which you become legally obliged to pay your acquiring bank or payment processor os a direct result of a payment card breach. However, this Exclusion will not apply to INSURING CLAUSE 2 (SECTION A only). 48. Personal injury arising directly or indirectly out of personal injury. However, this Exclusion will not apply to INSURING CLAUSE 3 (SECTION B only). 49. Personal liability in respect of any action brought against any past, present or future senior executive officer or employee unless arising directly out of work performed for the company. 50. Pollution arising directly or indirectly out of pollution. However, this Exclusion will not apply to INSURING CLAUSES 1 (SECTION F only), 4 and 5. 5 l . Product recall for the costs to withdraw, recall, dispose, remove, repair, adjust, alter, recondition, replace, reinstate any product or part of a product. 52. Products liability arising directly out of any bodily injury or property damage caused directly by any product. However, this Exclusion will not apply to INSURING CLAUSE 3 (SECTION Conly). 53. Professional services arising directly or indirectly from carrying out, or failing to carry out, professional services for a fee or any act, error or omission relating to a professional service. However, this Exclusion will not apply to INSURING CLAUSE 1. 54. Project-specific insurance arising directly or indirectly out of any projects for which you have purchased project specific insurance. 55. Retroactive date in respect of INSURING CLAUSES 1 and 3 (SECTION F orly), arising out of any actual or alleged incident occurring, in whole or in part, on or before the retroactive date. 56. RICO for any actual or alleged violations of the Racketeer Influenced and Corrupt Organization Act and any subsequent amendments to this Act. 5 7. Sanctions to the extent that tne provision of such cover or payment will expose us to any sanction, prohibition or restriction under the United Nations resolutions or the trade or economic sanctions, laws ot· regulations of Australia, Canada, the European Union, United Kingdom or United States of America. 58. Securities violations for any actual or alleged violation of any laws or regulations relating to the offer or sale of securities. 59. Seizure of illegal property arising from an order by a public or government authority which deprives you of the use or value of your property or arising from acts of contraband or illegal transportation or illegal trade. 60. Terrorism arising directly or indirectly out of: a. any act or threat of force or violence by an individual or group, whether acting alone or on behalf of or in connection with any organization or government, committed for political, religious, ideological or similar pu1·poses including the intention to influence any government or to put the public, or any section of the public, in fear; or b. any action taken in controlling, preventing, suppressing or in any way relating to a. above. However, this Exclusion does not apply to a cyber event affecting your computer systems or a cloud computing provider's systems. 61. Toxic mold arising directly or indirectly from the toxic properties of any fungus, mold, mildew or yeast. However, this Exclusion will not apply to INSURING CLAUSE 1. 62. Trade Debt arising directly or indirectly out of any trading losses or trading liabilities incurred by you, or any loss of your profit arising from the loss of any client, account or business. 63. Uninsurable fines for fines, penalties, civil or criminal sanctions, and for multiple, punitive or exemplary damages, unless insurable by law. 64. Unjust enrichment for that part of ony claim that results in you being in a bette, financial position as a direct result of your act, error or omission than you would have been if you had not committed the act, error or omission. However, this Exclusion will not apply to any refund of any fee, other than the part of the fee that represents your profit or mark-up or liability for taxes. 65. Unlawful surveillance in respect of any actual or alleged eavesdropping, wiretapping, or unauthorized audio or video recording committed by you or by a third party on your behalf with the knowledge and consent of your senior executive officers. 66. Unsolicited communications arising directly or indirectly from any actual or alleged violation of: a. the CAN-SPAM Act of 2003 or any subsequent amendments to that Act; b. the Telephone Consumer Protection Act (TCPA) of 199 l or any subsequent amendments to that Act; or (l c. any other law, regulation or statute relating to unsolicited communication, distribution, sending or transmitting of any communication via telephone or any other electronic or telecommunications device. However, this Exclusion will not apply to INSURING CLAUSE 2 (SECTION A only). 67. Vacant premises in respect of INSURING CLAUSES 4 and 5, resulting from premises left vacant for more than 60 consecutive days. 68. War arising directly or indirectly out of: a. war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war is declared or not), civil war, rebellion, insurrection, civil commotion assuming the proportions of or mounting to an uprising, military or usurped power; m b. any action taken in controlling, preventing, suppi-essing or in any way relating to a. above. 69. Willful or dishonest acts of senior executive officers arising directly or indirectly out of any willful, criminal, malicious or dishonest act, error or omission by a senior executive officer as determined by final adjudication, arbitral tribunal or written admission. CONDITIONS l. What you must do in the event of a claim or cyber incident If any senior executive officer becomes aware of any incident which may reasonably be expected to give rise to a claim under this Policy you must: a. notify the claims managers (in respect of cyber incidents, a telephone call to our cyber incident response line will constitute notification) as soon as is reasonably practicable and follow their directions. However, in respect of INSURING CLAUSES 1 ond 3 (SECTION F only) this notification must be made no later thon the end of any applicable extended reporting period; and b. not admit liability for or settle or make or promise any payment or incur any costs and expenses without our prior written agreement (which will not be unreasonably withheld). If you discover a cyber event you may only incur costs without our prior written consent within the first 72 hours following the discovery ond ony third party costs incurred must be with a company forming part of the approved claims panel providers. All other costs may only be incurred with the pr"ior written consent of the claims managers (which will not be unreasonably withheld) 2. Additional insureds We will indemnify any third party as an additional insured under this Policy, but only in r·espect of sums which they become legally obliged to pay (including liability for claimants' costs and expenses) as a result of a claim arising solely out of an act committed by you, provided that: a. you contracted in writing to indemnify the third party for the claim prior to it first being made against them; and b. had the claim been made against you, then you would be entitled to indemnity under this Policy. Before we indemnify any additional insured they must: o. prove to us that the claim arose solely out of an act committed by you; and b. fully comply with CONDITION l as if they were you. Where we indemnify a third party as an additional insured under this Policy, this Policy will be primary and non-contributory to the third party's own insurance, but only if you and the third party have entered into a contract that contains a provision requiring this. Where a third party is treated as an additional insured as a result of this Condition, any claim made by that third party against you will be treated by us as if they were a third party and not as an insured. 3. Agreement to pay claims (duty to defend) We have the right and duty to take control of and conduct in your name the investigation, settlement or defense of any claim. We will not have any duty to pay costs and expenses for any part of a claim that is not covered by this Policy. You may ask the claims managers to consider appointing your own lawyer to defend the claim on your behalf and the claims managers may grant your request if they consider your lawyer is suitably qualified by experience, taking into account the subject matter of the claim, and the cost to provide a defense. We will endeavor to settle any claim through negotiation, mediation or some other form of alternative dispute resolution and will pay on your behalf the amount we agree with the claimant. If we cannot settle using these means, we will pay the amount which you are found liable to pay either in court or through arbitration proceedings, subject to the limit of liability. We will not settle any claim without your consent. If you refuse to provide your consent to a settlement recommended by us and elect to continue legal proceedings in connection with the claim, any further costs and expenses incurred will be paid by you. As a consequence of your refusal, our liability for the claim will not be more than the amount for which the claim could have been settled had you consented, plus any costs and expenses incurred prior to the date of your refusal. 4. Calculation of business interruption losses In respect of INSURING CLAUSES 2 (SECTION F only) and 5, in the event of a claim for any financial loss sustained by you, you must provide the claims managers with your calculation of the financial loss including. a. how the loss has been calculated and what assumptions have been made; and b. supporting documents including account statements, sales projections and invoices. If we are unable to agree with your calculation of the financial loss, we will appoint an independent expert agreed between you and us which will be paid for by us. If an independent expert cannot be agreed upon, one will be appointed by an arbitrator mutually agreed between you and us whose decision will be final and binding. Once an independent expert has been appointed, their cclculation of any financial loss sustained by you will be final and binding. 5. Cancellation This Policy may be canceled with 30 days written notice by either you or us. If you give us notice of cancellation, the return premium will be in proportion to the number of days that the Policy is in effect. However, if you have made a claim under this Policy there will be no return premium. If we give you notice of cancellation, the return premium will be in proportion to the number of days that the Policy is in effect. We also reserve the right of cancellation in the event that any amount due to us by you remains unpaid more than 60 days beyond the inception date. If we exercise this right of cancellation it will take effect from 14 days after the date the written notice of cancellation is issued. The Policy Administration Fee will be deemed fully earned upon inception of the Pol(cy. 6. Continuous cover If you have neglected, through error or oversight only, to report an incident discovered by you that might give rise to a claim under this Policy during the period of a previous renewal of this Policy issued to you by us, then provided that you have maintained uninterrupted insurance of the same type with us since the expiry of that earlier Policy, we will permit the matter to be reported under this Policy and we will indemnify you, pr-ovided that: a. the indemnity will be subject to the applicable limit of liability of the earlier Policy under which the matter should have been reported or the limit of liability, whichever is the lower; b. we may reduce the indemnity entitlement by the monetary equivalent of any prejudice which hos been suffered as a result of the delayed notification; and c. the indemnity will be subject to all of the terms and conditions of this Policy, other than a. above. 7. Cross liability and severability In respect of INSURING CLAUSE 3 only, where there is more than one entity insured under this Policy, and subject to the limit of liability, any claim made by one insured entity against anorher insured entity will be treated as if they are a third party and knowledge possessed by one insured entity will not be imputed to any other insured entity. 8. Establishing loss of contents If you make a claim under this Policy for loss of contents, you must reasonably establish how and when the incident took place. This may include confirmation that the incident was reported to the appropriate law enforcement authorities and details of any investigation they undertook. 9. Extended reporting period In respect of INSURING CLAUSES 1 and 3 (SECTION F only), an extended reporting period of 60 days following the expiry date will be automatically granted at no additional premium. This extended reporting period will cover, subject to all other terms, conditions and exclusions of this Policy, claims first made against you during the period of the policy and reported to us during this extended reporting period. No claim will be accepted by us in this 60 day extended reporting period ii you are entitled lo indemnity under any other insurance, or would be entitled to indemnity under such insurance if its limit of liability was not exhausted. l 0. Optional extended reporting period In respect of INSURING CLAUSES 1 and 3 (SECTION F only), if we or you decline to renew or cancel this Policy then you will have the right to have issued an endorsement providing an optional extended reporting period for the duration stated in the Declarations page which will be effective from the cancellation or non-renewal date. This optional extended reporting period will cover claims first made against you and reported to us during this optional extended reporting period but only in respect of any claim arising out of any act, error or omission committed prior to the date of cancellation or non-renewal and subject to all others terms, conditions and exclusions of this Policy. If you would like to purchase the optional extended reporting period you must notify us and pay us the optional extended reporting period premium stated in the Declarations page within 30 days of cancellation or non-renewal. The right to the optional extended reporting period will not be available to you where cancellation or non-renewal by us is due to non-payment of the premium or your failure to pay any amounts in excess of the applicable limit of liability or within the amount of the applicable deductible as is required by this Policy in the payment of claims. At the renewal of this Policy, our quotation of different premium, deductible, limits of liability or changes in policy language will not constitute non-renewal by us. l l . Fraudulent claims If it is determined by final adjudication, arbitral tribunal or written admission by you, that you notified us of any claim knowing it to be false or fraudulent in any way, we will have no responsibility to pay that claim, we may recover from you any sums paid in respect of that claim and we reserve the right to terminate this Policy from the date of the fraudulent act. If we exercise this right we will not be liable to return any premium to you. However, this will not affect any claim under this Policy which has been previously notified to us. 12. Innocent non-disclosure We will not seek to avoid the Policy or reject any claim on the grounds of non-disclosure or misrepresentation except where the non-disclosure or misrepresentation was reckless or deliberate. 13. Maintenance of employee automobile liability insurance It is a condition precedent to indemnity under INSURING CLAUSE 3 (SECTIONS G and H only) that all employees who operate an automobile in the course of your business activities will maintain in full force and effect for the period of the policy primary automobile liability insurance in an amount equal to, or greater than, the minimum primary automobile liability limits required in the state of registration of the automobile. If you make a claim under INSURING CLAUSE 3 (SECTIONS G and H only) and the employee has foiled to meet these requirements then this Policy will only respond to provide excess coverage as though the requirements had been met, whereby you agree to pay all sums within and up to the required minimum limit. 14. Mergers and acquisitions If you acquire an entity during the period of the policy whose annual revenue does not exceed 20% of the company's annual revenue, as stated in its most recent financial statements, cover is automatically extended under this Policy to include the acquired entity as a subsidiary. If you acquire an entity during the period of the policy whose annual revenue exceeds 20% of the company's annual revenue, as stated in its most recent financial statements, cover is automatically extended under this Policy to include the acquired entity as a subsidiary for a period of 45 days. We will consider providing cover for the acquired entity alter the period of 45 days if: a. you give us full details of the entity within 45 days of its acquisition; and b. you accept any amendment to the terms and conditions of this Policy or agree to pay any additional premium required by us. In the event you do not comply with a. orb. above, cover will automatically terminate for the entity 45 days after the date of its acquisition. Cover for any acquired entity is only provided under this Policy for any act, error or omission committed on or after the date of its acquisition. No cover will be automatically provided under this Policy for any acquired entity: a. whose business activities are materially different from your business activities; b. that has been the subject of any lawsuit, disciplinary action or regulatory investigation in the 3 year period prior to its acquisition; or c. that has experienced a cyber event in the 3 year period p1for to its acquisition, if the cyber event cost more than the highest deduciible of this Policy. If during the period of the policy you consolidate, merge with or are acquired by another entity then all coverage under this Policy will terminate at the date of the consolidation, merger or acquisition unless we have issued an endorsement extending coverage, and you have agreed to any additional premium and terms of coverage required by us. 15. Our rights of recovery If we make any payment under this Policy then you must maintain all of your rights of recovery in respect of this payment against any third party and make these available to us where possible. We will not exercise any rights of recovery against employees or the estates, heirs, legal representatives or assigns of any employee in the event of their death, incapacity, insolvency or bankruptcy unless this is in respect of any fraudulent or dishonest acts or omissions as proven by final adjudication, arbitral tribunal or written admission by you. Any recoveries will be applied in proportion to the amounts paid by you and us in relation to the claim under this Policy. l 6. Waiver of subrogation Notwithstanding CONDITION 15, we agree to waive our rights of recovery against any third party if, prior to the claim or incident which you reasonably expected to give rise to a claim, you entered into a contract that contains a provision requiring you to do this. l 7. Prior subsidiaries Should an entity cease to be a subsidiary alter the inception date, cover in respect of the entity will continue as if it was still a subsidiary during the period of the policy, but only in respect of an act, error, omission ot· event occurring prior to the date that it ceased to be a subsidiary. l 8. Process for paying privacy breach notification costs Any privacy breach notification transmitted by you or on your behalf must be done with our prior written consent. We will ensure that notification is compliant with any legal or regulatory requirements and contractual obligations. No offer must be mode for financial incentives, gilts, coupons, credits or services unless with our prior written consent which will only be provided ii the offer is commensurate with the risk of harm. We will not be liople for any portion of the costs you incur under INSURING CLAUSE 2 (SECTION C only) that exceed the costs that you would hove incurred hod you gained our prior written consent. In the absence of our prior written consent we will only be liable to pay you the equivalent cost of a notification made using the most cost effective means permissible under the governing low. l 9. Choice of law and service of suit In the event of a dispute between you and us regarding this Policy, the dispute will be governed by the laws of the State of the United States of America shown as the choice of low stated in the Declarations page. We agree, at your request, to submit to the jurisdiction of a court of competent jurisdiction within the United States of America. Nothing in this Condition constitutes or should be understood to constitute a waiver of our rights to commence an action in any court of competent jurisdiction in the United States of America, to move an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States of America or the lows of any State of the United States of America. It is further agreed that service of process in such suit may be made upon the law firm stated in the Declarations page and that in any suit instituted against us, we will abide by the final decision of such court or of any appellate court in the event of on appeal. The law firm stated in the Declarations page is authorized and directed to accept service of process on our behalf in any such suit and, at your request, to give a written undertaking to you that they will enter a general appearance on our behalf in the event such suit is instituted. Additionally, in accordance with the statute of any state, territory or district of the United States which makes such a provision, we hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as our true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by you arising out of this Policy. The low firm stated in the Declarations page is hereby designated as the firm to whom the above mentioned officer is authorized to moil such process or a copy thereof. CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE I, -8.vA~l) R '= :S~~Q , am the __.&'--=-~..,._.~....,_[L..:./~.:::;...,~.__1/ ....... ~oc......_------ [insert name] [title] of 1/m< J(vµ,,1',v-471,H"q/,., I hereby certify that 7Jf(Nbe J;,v;;f,<#,'9-,J,,./)1/- [name of company] [ name of company] has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should "74'~ J:,v7£~ /V<1Z7V¥(l I--employ any person during the term [name of company] of the Agreement with the City of Carlsbad for ~~vc .>,tn;:;y ;r;,'"1, o/1 "V".7 Sf ?'VI ~if , [description of project or work that is being contracted] then workers' compensation and employers' liability insurance will be obtained. PA.'es/o~. Mfn<·.&-;f/frl't1--;1;~ L- (Title and name of c<i"'mpany or corporationJ 06/15/2006 25