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Core Business Technologies; 2018-11-01;
SOFTWARE LICENSE & ASP HOSTING SERVICES AGREEMENT FOR !PAYMENT ENTERPRISE WONDERWARE INC. DBA CORE BUSINESS TECHNOLOGIES l YI\ r~,s.. A ,A,.Gl3EEMENT is made and entered into as of the \ s\-day of ~~ , 20-1£2, by and between the CITY OF CARLSBAD, a municipal corporation, ("City" or "Customer"), and WONDERWARE INC. dba CORE BUSINESS TECHNOLOGIES, an East Providence, Rhode Island, ("Contractor" or "CORE"). RECITALS A. City desires a non-exclusive right and license to use the iPayment Enterprise software and Contractor provided hosting services as defined herein from a services vendor that is experienced in providing CORE iPayment ASP hosting service. B. Contractor has the necessary experience in providing an ASP hosting service, and providing ongoing software support. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such software and hosting services. D. City and Contractor desire to enter into two separate agreements, including (i) this Software License and ASP Hosting Services Agreement ("Agreement") for support and upgrades of the iPayment Enterprise solution, and (ii) a Professional Services Agreement for implementation of the iPayment Enterprise solution ("Implementation Agreement"). NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. INCORPORATION OF SCHEDULES AND EXHIBITS Any Exhibit or Schedule signed by the parties and referring to this Software License and ASP Hosting Services Agreement, and any Exhibit or Schedule referred to herein or referring to this Agreement, shall be incorporated into this Agreement. In the event of a conflict between the documents comprising this Agreement, the provisions of any Exhibit or Schedule shall take precedence with respect to its subject matter, and the terms of any Exhibit or Schedule shall take precedence over any other terms. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM AND TERMINATION The rights granted under this Software License and ASP Hosting Services Agreement commence as of the Effective Date and continue for an Initial Term of five years unless this Agreement is sooner terminated as provided herein. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total maximum fee payable for the Services to be performed during the initial Agreement term will be one hundred sixty-seven seven hundred dollars ($361,060.00). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. Payments shall be made in accordance with the schedule contained in Exhibit B. C~E 2018 Agreement iPayment Enterpnse Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 6 of 44 Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney's fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. It is specifically agreed that the City maintains the responsibility for the auditing of transaction data. Transaction data is defined as information that is captured in iPayment and is either stored in its transaction database and/or posted to the host system(s) of record for payment application. The action or lack of action taken by the City as a result of transaction processing is the sole responsibility of the City. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. 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 Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. C~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 7 of 44 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability {CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. C~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5--18 October 30, 2018 Item #3 Page 8 of 44 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Maria Callander Title Director Department Information Technology City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. 760-602-2454 For Contractor Name Jeffrey Saucier Title Vice President & General Manager Address 2224 Pawtucket Avenue East Providence, RI 02914 Phone No. 401-431-0700 Email jsaucier@corebt.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 14. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesD No',KL 15. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 16. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 17. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of C~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 9 of 44 resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 18. TERMINATION a) Termination upon Breach. In the event either party gives written notice to the other that such other party has materially breached the terms of this Agreement, and such breach shall not have been cured within Sixty (60) business days of the giving of such notice, the party giving such notice shall have the right to terminate this Agreement at any time thereafter upon written notice of such termination to the other party with or without additional cause. Notwithstanding the foregoing, CORE may terminate this License Agreement and the rights granted hereunder if Customer fails to pay any amounts due under this License Agreement as and when due (CORE will send written notice to Customer advising of such breach with 60 days to cure). Upon termination for failure to pay amounts due after 60 days after written notice has been sent to cure the original breach and the remaining payments for the initial term, CORE may terminate this agreement. Customer must make all remaining payments due in the Initial Agreement Term within 90 days of termination. Customer shall immediately cease to use the Licensed Program and, if such matter is not resolved within six (6) months of the above-mentioned written notice, dispose of Documentation by returning such Documentation to CORE or, at CORE's option, by destroying the same and certifying such destruction in writing. Upon payment of all amounts due after Customer has been advised of breach, the Customer may immediately resume use of the Licensed Program for the remainder of the Initial Agreement Term. THIS AGREEMENT IS NON-CANCELLABLE FOR THE INITIAL AGREEMENT TERM EXCEPT AS PROVIDED IN THIS AGREEMENT. b) This Agreement may be terminated by a party due to assignment of the business of the other party for the benefit of creditors or upon filing of a petition into receivership, or a petition of bankruptcy (voluntary or involuntary) which has not been discharged within Sixty (60) days. c) The City is a public entity that is subject to an annual budgetary appropriation process. Notwithstanding any other provision of this Agreement, if funds for the continued fulfillment of this Agreement are, at any time, not forthcoming or insufficient through failure of the City Council to appropriate funds or otherwise, the City may terminate this Agreement upon thirty (30) days written notice and with no penalties. d) Effect of Termination. Upon termination of this Agreement, neither party shall have any further obligation hereunder except for (i) obligations accruing prior to the date of termination, and (ii) obligations or covenants contained herein that are expressly intended to extend beyond the term of this Agreement, including, without limitation, covenants relating to Confidentiality and Indemnification. e) Actions Upon Termination. Upon termination of this Agreement for any reason, Customer shall immediately cease use of, and return forthwith to CORE, the Licensed Program and the Licensed Documentation, and any copies thereof, including Maintenance Modifications and Enhancements. 19. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without C~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 10 of 44 liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 20. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 21. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 22. SUCCESSORS AND ASSIGNS This Agreement may not be assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either party in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. 23. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 24. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR (sign here) Mark S. Cohen, President CITY F CARLSBAD, a municipal co ora ion of the State of California ER ITLE OF PERSON AUTHORIZED TO SIGN (City Manager or Mayor or Division Director as authorized by the City Manager)] C~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 11 of 44 (print name/title) ATTEST: By: (sign here) City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. !f.....£ corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BjEWE~, ~ Attorney BY: // M (.!_____ --------------Assistant City Attorney CBf-E 2018 Agreement iPayment Enterprise Subscnpt,on and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 12 of 44 EXHIBIT B BILLING/PAYMENT SCHEDULE Payment Terms: a. Customer shall pay iPayment Enterprise Subscription License fees in accordance with Exhibit A, billed quarterly in advance upon delivery of system access (development or test instance) or $8,385.00/quarter. b. Customer shall pay for the CORE ASP Hosting fees and additional environments in accordance with Exhibit A, billed quarterly in advance upon delivery of system access ( development or test instance) or $ 7, 785.00/quarter. c. Customer shall pay for the Gateway and EMV & Point to Point Encryption Support annual fees in accordance with Exhibit A, upon" Go Live" or $7,532.00/year. NOTES: 1. The customer is responsible for remitting any applicable sales and use taxes to the local and or State tax authority. 2. Training will be "train the trainer" format. 3. Customer will facilitate supervised access to customer host systems. C~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 14 of 44 EXHIBITC CORE !PAYMENT SUBSCRIPTION LICENSE TERMS SECTION 1 -DEFINITIONS The definition of terms set forth in this section shall apply when such terms are used in this Exhibits, and any amendments: 1.1 "Agreement Term." The Initial Agreement Term plus any subsequent one year renewals. 1.2 "Designated Customer Personnel." Customer selected employees who are designated to be the front line, first call User support. These Customer employees answer User questions and elevate questions they are not able to answer to CORE support personnel. 1.3 "Enhancements." Changes or additions, other than Maintenance Modifications, created by either CORE or by the Customer, to the Licensed Program or Licensed Documentation that add significant new functions or substantially improved performance thereto by changes in system design or coding. 1.4 "Error." Problem caused by incorrect operation of the computer code of the Licensed Program or an incorrect statement or diagram in Licensed Documentation that produces incorrect results or causes incorrect actions to occur. 1.5 "Error Correction." Either a software modification or addition that, when made or added to the Licensed Program, establishes material conformity of the Licensed Program to the Licensed Documentation, or a procedure or routine that, when observed in the regular operation of the Licensed Program, eliminates the practical adverse effect on Customer of such non-conformity. 1.6 "Initial Agreement Term": A 60-month time period that starts with delivery of system access (development or test instance). 1.7 "Licensed Documentation." The system and other documentation made available by CORE, for the Licensed Program. 1.8 "Licensed Program." The computer program specifically identified within the Exhibits herein as applications within the iPayment Enterprise product line, including object code, written and electronic documentation as well as related procedural code, Enhancements, Error Corrections and Maintenance Modifications. 1.9 "Maintenance Modifications." Modifications or revisions, created by either CORE or by the Customer, to the Licensed Program or the Licensed Documentation that correct Errors. 1.10 "Privacy Laws." All present and future laws and regulations relating to the privacy of individually identifiable medical, financial or other information including, the Health Insurance Portability and Accountability Act of 1996 and rules and regulations promulgated thereunder (HIPAA). 1.11 "Proprietary Information and Intellectual Property." Unpublished and published "know-how" and "trade secrets" which shall include, without limitation, the Licensed Program, the Licensed Documentation, computer programs, program designs, algorithms, subroutines, system specifications, test data, charts, graphs, operation sheets, and all other technical information, owned by CORE or under its control, relating to the development and production or use of the Licensed Program and the design, configuration, programming, and protocol of the Licensed Program. 1.12 "Normal Working Hours." The hours between 8:30 AM and 5:00 PM EST. on the days Monday through Friday, excluding regularly scheduled holidays of CORE. All references to hours of the day refer to Eastern Standard time (EST). 1.13 "Releases." New versions of the Licensed Program, defined by version number and associated release notes provided at time of release. Cf (1 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 15 of 44 1.14 "Specifications." The functional performance parameters of the customizations and Enhancements, if any, developed and delivered by CORE pursuant to this agreement. The final project Specification, once agreed to in writing by the parties, will be the controlling functional document for the project. 1.15 "Transaction" The creation of a record in the system transaction table with a uniquely assigned transaction reference number is a transaction. Examples: (i) the posting of a single transaction to a receipt tendered by one or more payment types (tenders) will result in a single transaction record, (ii) the posting of more than one transactions to a receipt tendered by one or more tenders will result in transactions equal to the number of items, (iii) the posting of transactions containing sub transactions will result in the creation of transactions equal to the number of items plus the number of sub items. 1.16 "Users." The designated Customer employee(s) including contracted staff for whom a unique identifier and password have been assigned by Customer to access and operate the licensed software. SECTION 2 -GRANT OF LICENSE 2.1 Scope of License. Subject to compliance by Customer with the terms hereof, CORE hereby grants to Customer, for the Agreement Term, unless terminated as provided herein, a personal, non-exclusive, non-transferable license (without the right of sublicense), to: Install the Licensed Program and use it only in object code form solely on computers owned or leased and used by Customer at its facilities, for up to the number of Transactions specified in this Agreement in Exhibit A, for the sole and express purpose of supporting the business activities of Customer. 2.2 Minimum Hardware and Software Requirements. Customer acknowledges that in order for the Licensed Program to be executed, Customer's computers must meet or exceed the minimum published hardware, software (including third- party software) and communication requirements for the Licensed Program as provided in Exhibit E. Customer agrees such requirements are subject to change, and that future versions of the Licensed Program may have different hardware and software requirements than those presently in effect. The acquisition of necessary hardware and software meeting the requirements then in effect shall be the sole responsibility of Customer. CORE agrees that they have fully disclosed current hardware, software and operating system requirements for the current release of the Licensed Program. 2.3 Acquisition of Third-party Software. The acquisition of necessary licenses and support for this software shall be the sole responsibility of Customer. Specifications for this third-party software are provided in Exhibit E. Customer acknowledges that CORE software support does not cover third-party software unless otherwise specified. 2.4 Custom Modifications. The Customer acknowledges that the standard software listed on Exhibit A does not include custom modifications, such as software interfaces to the Customer's host systems, check digit routines, interest computations, OCR edits, etc. The development by CORE of custom specifications is chargeable by CORE at rates not to exceed Exhibit A for 2 years from date of production use. The Professional Services Agreement provides the scope of custom modifications, if any. If further definition is needed, it will be agreed to by the parties in a final project Specification. 2.5 Assignment of Rights in Developed Maintenance Modifications and Enhancements. All right, title, and interest in all Maintenance Modifications and Enhancements developed for Customer during the term of this Agreement are hereby assigned by Customer to CORE, for CORE's own purposes, whether for CORE's corporate purposes or for CORE's other third-party Customers, all without any royalty or other payment payable by CORE to Customer. Notwithstanding the foregoing, CORE shall have no liability therefore under this Agreement, or otherwise at law or in equity, to Customer. 2.6 Availability of CORE Enhancements. CORE agrees to offer to Customer a license to Enhancements that CORE develops and offers generally to Customers of the Licensed Program according to the terms under Section 9.1. SECTION 3 -TITLE TO MATERIALS 3.1 Title to Licensed Program and Licensed Documentation. Customer acknowledges that all right, title, and interest in and to the Licensed Program and Licensed Documentation, including the media on which the same are furnished to Customer, are and shall remain at all times the sole and exclusive property of CORE. Customer acknowledges that no such rights, title, or interest in or to the Licensed Program and the Licensed Documentation is granted under this Agreement, and no such assertion shall be made by Customer. The Licensed Program and the Licensed Documentation are and shall remain the sole property of CORE, regardless of whether Customer, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid CORE for the use of the work Cf~E 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 16 of 44 product. Customer is granted only a limited right of use of the Licensed Program and the Licensed Documentation as set forth herein, which right of use is not coupled with an interest and is revocable in accordance with the terms of this Agreement. 3.2 Title to Enhancements and Maintenance Modifications; Restrictions on Use, Disclosure, Access, and Distribution. All right, title, and interest in and to any Enhancements and Maintenance Modifications developed by either CORE or Customer shall remain with CORE. Customer and it's strategic IT partners shall treat all such Enhancements and Maintenance Modifications in accordance with the restrictions and limitations set forth herein respecting Licensed Programs and Licensed Documentation. SECTION 4-FEES AND PAYMENTS 4.1 License Fees. Customer shall pay CORE the iPayment Enterprise Subscription License Fees as set forth in Exhibit A. Other services supplied by CORE shall be billable in accordance with Exhibit B unless otherwise specified in an addendum to this Agreement. 4.2 License Key. Upon payment of the iPayment Enterprise Subscription License fee set forth in Exhibit A for the Initial Agreement Term a software-based license key which is updated through the application configuration tool will enable operation of the Licensed Program for the associated date range. Payment of the license fee and acceptance of said license fee by CORE, entitles the Customer to: Reasonable phone support in the form of counsel and advice on the use of the Licensed Program for designated Customer personnel; Corrections for problems diagnosed as defects in the Licensed Program; Solutions or "workarounds" to problems relating to the Licensed Program as such solutions become known to CORE; All Enhancements to the current version of the Licensed Program or the Licensed Documentation which are developed in the normal course of product life; All Maintenance Modifications to the current version of the Licensed Program or the Licensed Documentation as a result of program maintenance; In the event the Licensed Documentation is completely revised or a new edition is published, such new editions or complete revisions will be provided as part of the current software product in filling any new orders after the date of publication, and otherwise may be purchased separately for the then-current price; and Error Corrections to the Licensed Program or the Licensed Documentation. 4.3 Interest Fee. CORE shall have the right to charge Customer a monthly interest fee of 1.5% (18% annually) for all undisputed invoices which are over thirty (30) days past due. 4.4 Payment. Payment for all fixed fees and charges shall be in accordance with the payment schedule set forth in Exhibit B -Billing/Payment Schedule. 4.5 Taxes. The fees and charges specified in this agreement are exclusive of any federal, state, or local excise, sales, use, and similar taxes assessed or imposed with respect to the service and support provided hereunder. Customer shall pay any such amounts upon request of CORE accompanied by evidence of imposition of such taxes or provide evidence of tax exemption status acceptable to the taxing authority. SECTION 5 PROTECTION OF PROPRIETRY INFORMATION AND MATERIALS 5.1 Acknowledgement of Proprietary Information and Materials; Limitations on Use. Customer acknowledges that the Licensed Program and the Licensed Documentation and all other Proprietary Information are unpublished works for purposes of federal copyright law and embody valuable confidential and secret information of CORE, the development of which required the expenditure of considerable time and money by CORE. Customer shall treat the Licensed Programs the Licensed Documentation and all other Proprietary Information in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy, or disclose the same for any purpose that is not specifically authorized under this Agreement. 5.2 Secure Handling. Except for copies of the Licensed Program installed and operated upon its computers as permitted hereunder, Customer shall require that the Proprietary Information and the Licensed Documentation to be kept on Customer's premises shall be maintained in a manner so as to reasonably preclude unauthorized persons from gaining access thereto, and Customer shall permit access only as necessary for either party's use thereof in accordance with the terms of this Agreement. Cf~ 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 17 of 44 5.3 Compliance with Privacy Laws. Each party shall also be responsible for ensuring that performance of its obligations and exercise of its rights under this Agreement comply with all applicable Privacy Laws. If this Agreement or any practices which could be, or are, employed in performance of this Agreement are inconsistent with or do not satisfy the requirements of any Privacy Laws, (i) the parties shall agree in good faith upon an appropriate amendment to this Agreement to comply with such laws and regulations and (ii) the parties shall execute and deliver any documents required to comply with such Privacy Laws including, without limitation, any business associate agreements required under HIPAA. 5.4 Customer assurance with respect to reverse engineering. Customer shall refrain from taking any steps to reverse assemble, reverse compile or otherwise derive a source code version of the Licensed Program. 5.5 Proprietary Legends. Customer shall not permit anyone other than CORE to remove any proprietary or other legend or restrictive notice contained or included in any material provided by CORE. 5.6 Reproduction of Licensed Documentation. Customer may reproduce the Licensed Documentation provided by CORE, provided that such reproductions are for the private internal use of Customer, and all such reproductions bear CORE's copyright notices and other proprietary legends. 5.7 Injunctive Relief. Customer recognizes and acknowledges that any use or disclosure of the Proprietary Information by Customer in a manner inconsistent with the provision of this Agreement may cause CORE irreparable damage for which remedies other than injunctive relief may be inadequate. In the event of such a violation of this Agreement, CORE shall be entitled, upon application to a court of competent jurisdiction, to a temporary restraining order or preliminary injunction, to restrain and enjoin Customer from such violation, without prejudice to any other remedies available to CORE. CORE recognizes and acknowledges that any use or disclosure of the Proprietary Information by CORE in a manner inconsistent with the provision of this Agreement may cause Customer irreparable damage for which remedies other than injunctive relief may be inadequate. In the event of such a violation of this Agreement, Customer shall be entitled, upon application to a court of competent jurisdiction, to a temporary restraining order or preliminary injunction, to restrain and enjoin CORE from such violation, without prejudice to any other remedies available to Customer. 5.8 Customer assurance with respect to users. Customer shall assure that Customer's users comply with the terms and conditions of this Section 5. 5.9 Survival of Terms. The provisions of Section 5.1 through Section 5.9 shall survive termination of this Agreement for any reason. 5.10 PCI Compliance. All CORE software subject to Payment Application Data Security Standards (PA-DSS) shall be validated by CORE in accordance with PCI Security Council published requirements. All software provided as a service which is subject to Payment Card Industry Data Security Standard shall be validated in accordance to the PCI Security Council published requirements. SECTION 6-LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY 6.1 Limited Warranty Against Infringement. CORE warrants that to the best of its knowledge the Licensed Program and the Licensed Documentation, as delivered to Customer, do not infringe any third-party rights in patent, copyright, or trade secret in the United States. 6.2 Limited Warranty of Conformity. CORE warrants, for the benefit only of Customer, that for the life of this Agreement, the Licensed Program will conform in all material respects to the Licensed Documentation (except for modifications made by Customer or by CORE at the request of Customer), but only if Customer maintains uninterrupted Software Support as described in Section 9. CORE assumes no responsibility for obsolescence of the Licensed Program nor for lack of conformity occurring from Customer's failure to update the Licensed Program with distributed Enhancements, Maintenance Modifications, or Error Corrections. 6.3 Force Majeure. CORE shall not be liable for failure to deliver or delays in delivery occasioned by causes beyond CORE's control including, without limitation, fires, embargoes, war (or other outbreaks of hostility), governmental acts and regulations, receipt of orders from all sources in excess of its suppliers' then-scheduled production capacity, and other causes beyond CORE's control. 6.4 Disclaimer. Except as specifically set forth herein, CORE makes no warranties, whether expressed or implied, regarding or relating to the Licensed Program or the Licensed Documentation or to any other materials furnished or Cf~ 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 18 of 44 provided to Customer hereunder. CORE specifically disclaims all implied warranties of merchantability for use beyond the scope of this agreement. CORE does not warrant that the functions contained in the Licensed Program will operate in the combination which Customer selects for use, unless that combination is permitted as a function in the documentation, and does not warrant that the operation of the Licensed Program will be uninterrupted or error-free. 6.5 Limitation of Liability. Except for other exclusive remedies expressly provided under this Agreement relating to CORE's warranties and obligations concerning the Licensed Program, Except for gross negligence or intentional acts, Customer's exclusive remedy in the event of any breach of this Agreement by CORE shall be the recovery of its actual damages but not to exceed the amount paid by Customer under this Agreement as the License Fee for the Licensed Program, if the Licensed Program causes Customer's damages, and not to exceed the amount paid by the Customer under this Agreement as fees for Software Support, if the Software Support causes Customer's damages. The above stated liability is not applicable in the event of a third-party claim. Except as specifically provided in this Agreement, there are no other warranties, express or implied, including, but not limited to any implied warranties of merchantability or fitness for a particular purpose. In no event shall CORE be liable to the Customer for loss of profit, indirect, special, or consequential damages arising out of any breach of this Agreement or of obligations under this Agreement or the license granted or for any claim made against the Customer by any other party, even if CORE has been advised of the possibility of such a claim. CORE shall not be liable for any damages caused by delay in delivery, installation, or furnishing of the software or other program products or services under this Agreement. This limitation of remedy and damages is pursuant to and consistent with the Uniform Commercial Code Section 2-718 and Section 2-719, as defined and found in the General Laws of the State of Rhode Island, Title 6A. No action arising out of this Agreement may be brought by either party more than three (3) years after the action has accrued. An action shall be considered to accrue when the party knew or should have known of the damage or other event giving rise to the action. It is specifically agreed that Customer maintains the auditing of transaction data. Transaction data is defined as information that is captured in iPayment and is either stored in its transaction database and/or posted to the host system(s) of record for payment application. The action or lack of action taken by the Customer as a result of transaction processing is the sole responsibility of the Customer. 6.6 Exclusive Remedy. As the exclusive remedy of Customer for any nonconformity or defect constituting an Error in the Licensed Program for which CORE is responsible, CORE shall use commercially reasonable efforts to provide Maintenance Modifications with respect to such Error. However, CORE shall not be obligated to correct, cure, or otherwise remedy any Error in the Licensed Program resulting from any (1) modification of the Licensed Program by Customer, or (2) failure of Customer to notify CORE of the existence and nature of such nonconformity or defect upon its discovery. 6.7 Non-Approved Modifications. In the event Customer makes use of any software programming in connection with the equipment supplied by CORE which is not provided by or approved in writing by CORE, the Customer acknowledges that CORE has made no representation or warranties with respect to any product not supplied by CORE concerning its performance on the equipment or service supplied by CORE. CORE shall incur no liability to Customer arising out of the use of such software or devices or the furnishing of such services. Customer acknowledges that no software is being furnished to Customer by CORE, except pursuant to this Agreement or separate license Agreements between Customer and CORE. 6.8 Customer Indemnification. Customer shall and does hereby agree to indemnify, hold harmless, and save CORE from liability against any claim, demand, loss or action (1) resulting from Customer's extraordinary or unreasonable use or modification of the Licensed Program or the Licensed Documentation or (2) alleging that any Maintenance Modifications made by Customer infringe any third-party rights in the United States respecting copyright, trade secret, or patent. This applies only to modifications that have not been authorized by CORE. 6.9 CORE Indemnification. CORE shall and does hereby agree to indemnify, hold harmless, and save Customer from liability against any claim, demand, loss, or action alleging that the Licensed Program and the Licensed Documentation or any Maintenance Modifications or Enhancements made by CORE infringe any third-party rights in the United States respecting copyright, trade secret, or patent. 6.10 New Platform Protection. As long as Customer maintains a continuous software support Agreement with CORE for each of the modules included herein, Customer shall have the right to transfer the licenses for any and all modules to any new hardware/platform environment (hardware and system software as defined herein) then currently marketed and supported by CORE. Customer agrees to pay for any services and out-of-pocket costs associated with the migration to the new platform. The service costs will be billed at a rate not to exceed costs charged to other clients for similar tasks. 6.11 Disabling Code Warranty Software operations is based on the presence of a valid license key. CORE warrants to Customer that all Software licensed hereunder does not contain any undisclosed disabling code (defined as computer code designed to interfere with the normal operation of the Software or Customer's hardware or software) or any program ~!;f 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 19 of 44 routine, device or other undisclosed feature, including but not limited to, a time bomb, virus, drip-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the software or Customer's hardware or software. 6.12 Virus/Malicious Software Warranty CORE warrants to Customer that: (a) CORE has used its best efforts to scan for viruses within the Software, and (b) no malicious System will be supplied under this Agreement 6.13 Survival of Terms. The provisions of Section 6.1 through Section 6.13 shall survive termination of this Agreement. SECTION 7 -SOFTWARE SUPPORT 7.1 Scope of Service. CORE shall render support and services during the following working Hours: Monday through Friday 8:30 a.m. to 5:00 p.m. and after-hours pager support -Monday through Friday 5:00 p.m. to 8:00 p.m. for the following: Supported Version -CORE shall support the version of the Licensed Program being used by the Customer regardless of subsequent upgrades for a period of 2 years, it is understood by Customer that implementation of upgrades maybe necessary to address certain issues. Telephone Support -calls for assistance related to operation of the Licensed Program, reporting of a potential error condition or abnormal termination of a program, or request for minor assistance related to the Licensed Program. Reasonable phone support in the form of counsel and advice on the use of the Licensed Program for designated Customer personnel. Corrections for problems -diagnosed as defects in the Licensed Program; Solutions or "workarounds" to problems relating to the Licensed Program as such solutions become known to CORE. Enhancements -enhancements to the current version of the Licensed Program or the Licensed Documentation which are developed in the normal course of product life. Maintenance Modifications -to the current version of the Licensed Program or Licensed Documentation as a result of program maintenance. In the event the Licensed Documentation is completely revised or a new edition is published, such new editions or complete revisions will be provided as part of the current software product in filling any new orders after the date of publication, and otherwise may be purchased separately for the then-current price; and Error Corrections to the Licensed Program or the Licensed Documentation. Telephone Support -Calls for assistance related to operation of the Licensed Program, reporting of a potential error condition or abnormal termination of a program, or request for minor assistance related to the Licensed Program. Support Enhancements -Selected Enhancements, the nature and type of which shall be determined solely by CORE. Such provision shall not preclude CORE from providing other Enhancements of the Licensed Program for license fees, training charges, and other related service fees and charges. Source Code Maintenance -Library of the Licensed Program maintained by CORE for Customer, complete with modifications authorized by Customer and performed by CORE. Software Warranty -CORE will warrant the Licensed Program to be free from significant software bugs for the term life of this Agreement. 7.2 Customer Responsibilities. Customer shall be responsible for the procuring, installing, and maintaining all computer equipment, telephone lines, communications, interfaces, and other hardware necessary to operate the Licensed Program. 7.3 Proprietary Rights. To the extent that CORE may provide Customer with any Error Corrections or Enhancements or any other software, including any new software programs or components, or any compilations or derivative works of the Licensed Program prepared by CORE, Customer may (1) install copies of the Licensed Program adequate to serve the concurrent volume of Transactions as specified in this Agreement in Exhibit A, in the most current form provided by CORE, in Customer's own facility; and (2) use such Licensed Program in a manner consistent with the requirements of this Agreement, for purposes of serving Customer's internal business needs. Customer may not use, copy, or modify the Cf~ 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 20 of 44 Licensed Program, or make any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by CORE. 7.4 Disclaimer of Warranty and Limitation of Liability. Except as expressly set forth herein, CORE expressly disclaims any and all warranties concerning the services to be rendered hereunder, whether expressed or implied, including without limitation any warranty or merchantability or fitness for a particular purpose. Cft,£ 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 21 of 44 EXHIBIT D CORE !PAYMENT ASP MODULE TERMS Customer is subscribing to the CORE iPayment ASP Module. CORE will provide Customer's Authorized Users, access to the iPayment ASP, which allows for the processing of configured transaction types for the receipting of payments. 1. Effective Date and Term. The effective date of this Exhibit is set forth on page 1, section 3 of this Agreement. 2. Definitions "CORE ASP Service". The term "CORE ASP Service" as used in this Subscription Agreement is inclusive of the iPayment ASP Module (iPayment ASP) and Business Center ASP Module (Business Center ASP). This term may be amended by written agreement of the Parties to include additional products, services and modules. "iPayment Enterprise ASP Module": CORE's hosted iPayment Enterprise Software (iPayment ASP) ASP Services and all other software and documentation, as implemented by CORE from time to time. iPayment ASP provides the Customer's Authorized Users research, reporting and other features as determined by the Specification. "CORE iPayment ASP Module": CORE's hosted CORE iPayment Software, ASP Services and all other software and documentation, as implemented by CORE from time to time, and any software supplied by CORE for installation by Customer at its site in connection with the iPayment ASP Service for the purpose of Customer's Authorized Users receipting of institution revenue and additional features as determined by the final Specification. "CORE Business Center ASP Module": CORE's hosted iPayment Enterprise -Business Center (iPayment) software, services and all other software and documentation as provided and/or as implemented by CORE for the purpose of providing the Customers students, donors and other parties (collectively referred to as Users) paying for institutional charges, services and products an ecommerce site to initiate and complete such transaction in accordance with the Specification. a. "Authorized User": The designated Customer employee(s) or agent(s) assigned to access and operate the iPayment ASP for whom a unique identifier and password have been assigned by Customer with which to access the iPayment ASP. b. "Authorized Support Contact": Each of the Designated Authorized Customer Support Contacts that are listed in a Schedule to whom Support will be provided by CORE, except by special arrangement or as otherwise specified in the Subscription Agreement. c. "CORE ASP Hosting Fees": The quarterly fees to be paid by Customer to CORE for access to the CORE ASP Service and subsequent service modules agreed to by Customer. d. "Customer Revenue": Any payment made by Users of the Business Center or any payment taken by Customer for the benefit of Customer. e. "Deficiency": A failure of the CORE ASP Service to function materially in accordance with the Specifications. f. "Defective Equipment": An item of Equipment that is covered by Schedule B and that is not functioning materially in accordance with the Specifications for such Equipment. g. "Documentation": The associated user guide(s) for the CORE ASP Service and Equipment. h. "Expiration Date": The date at which time the contract can be cancelled according to the terms, or the anniversary of the Expiration date (one year from the Expiration Date) at which time the contract can be cancelled according to the terms. i. "Initial Agreement Term": A 60-month time period that starts with delivery of system access ( development or test instance) Cff 2018 Agreement iPayment Enterprise Subscription and ASP Hosting Agreement.FINAL nc 10-5-18 October 30, 2018 Item #3 Page 22 of 44 j. "Installation": Customer's access to the CORE ASP Service or any component thereof and completion of CORE's standard procedures for testing all components of the Equipment and CORE ASP Service purchased and to which Customer subscribes, respectively, according to the Subscription Agreement. k. "Institutional Charges": Any revenue charged by the institution, paid by users or authorized users, received by the CORE ASP Service for the benefit of the Customer. I. "Specifications": CORE's published specifications and the Documentation for the CORE ASP Service or any component thereof, and any published specifications and documentation for any Equipment, as applicable. m. "Support": The CORE ASP Service support services provided by CORE, as described in the Subscription Agreement. n. "Support Contact": Each of the Designated Authorized Customer Support Contacts that are listed in a Schedule to whom Support will be provided by CORE, except by special arrangement or as otherwise specified in the Subscription Agreement. o. "5_upport Fees": The fees to be paid by Customer for Supplemental Services, as identified in a Schedule. p. "System Configuration Requirements": As described in the applicable Schedule, the minimum and recommended technical configurations of Equipment and operating system software from which the CORE ASP Service will be accessed. q. "User": Any third party of the Institution who make payments through the Business Center ASP such as customers, patients or agents of the institution that is approved by the Institution. 3. Permitted Uses. The rights granted under this Subscription Agreement permit the Customer and Customer's authorized users: (1) to have access to and to use the CORE ASP Service until this Agreement is terminated as set forth in herein; (2) to install and use at Customer's facilities such additional components of the iPayment ASP as CORE may supply for purposes of enabling Customer to access the iPayment ASP Service and to perform ancillary functions on-site, all as specified in the system specifications, guides and final project specifications.; and (3) to use the Documentation. a. Customer and Customer's authorized users may use the CORE ASP Service only to access Customer's own data and to fulfill Customer's internal information processing needs. Customer agrees to abide by all applicable laws and regulations in connection with its use of the CORE ASP Service. Customer may not sublicense, resell, publish, transmit, broadcast or otherwise distribute all or any portion of the CORE ASP Service to any person or entity except as expressly set forth herein, or uses it to process the data of a third party. b. Customer shall take reasonable measures to restrict access to the iPayment ASP to its authorized employees and agents. Customer shall be responsible for ensuring that all individuals having access to the iPayment ASP or Documentation through Customer's account will observe and perform all the terms and conditions of this Subscription Agreement by all appropriate legal action against any person who gains unauthorized access to the iPayment ASP or Documentation while an employee or consultant of the Customer, or who engages in any unauthorized use of the iPayment ASP through Customer's account. Customer agrees to immediately notify CORE in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Documentation that may come to Customer's attention. 4. CORE ASP Hosting Fees. During the term of this Agreement, Customer shall pay CORE the CORE ASP Hosting Fees for the CORE ASP Service as set forth in Exhibit B. CORE shall bill and Customer shall pay the CORE ASP Hosting Fees quarterly in advance for the Initial Term of this Agreement and any subsequent one year term or terms. If additional CORE ASP Service modules are made available to Customer during the course of the initial term that are deemed of additional value outside of normal enhancements and upgrades that are normally made available to other Subscribers of the service as a normal course of business, and Customer consents and agrees to their use, the CORE ASP Hosting Fees for those said modules will be additionally charged on a pro-rated basis calculated to the Expiration Date and shall be paid monthly starting in the month of their use and shall end with the Expiration Date. After the initial term defined in section 7, CORE may change the CORE ASP Hosting Fees upon sixty (60) calendar days' prior written notice one time City Attorney Approved Version 6/12/18 18 October 30, 2018 Item #3 Page 23 of 44 per year at the beginning of the new contract year. After the initial term CORE shall not increase CORE ASP Hosting Fees charged to Customer more than five percent (5%) over the prior period rates. 5. Connection. Customer shall be responsible for acquiring and maintaining the third party software licenses, equipment and communications services necessary to connect to the CORE ASP Service and to download, print and otherwise process data delivered by the CORE ASP Service, including but not limited to desktop computers, network servers and printers, applications software and operating system software, telecommunications connections and Internet services which are described in the Documentation or in documentation otherwise provided by CORE to Customer unless outlined by agreement in this agreement or in any attached schedule. 6. Service Level Agreement a. Service Level Commitment. CORE will use its best efforts to ensure 99.5% Availability per month (as defined below) of the CORE ASP Service. The iPayment ASP and Business Center ASP shall be deemed to be unavailable when CORE's automated monitoring system is unable to access the associated web or database servers ("Unavailability''). b.Exceptions. CORE's service level commitment does not cover any unavailability attributable to (1) Customer's use of the CORE ASP Service otherwise than in accordance with the Documentation or with user guides from time to time made available to Customer; (2) any configuration or erroneous data entered into the CORE ASP Service by Customer; (3) any event beyond the reasonable control of CORE, including the malfunction or unavailability of any public Internet backbone or network or of any server or service not under the complete control of the CORE, or (4) Scheduled Maintenance pursuant to subsection (c) below.Scheduled Maintenance. "Scheduled Maintenance" shall mean any maintenance performed during a standard maintenance window as determined by CORE (a) of which Customer is notified 24 hours in advance or (b) the maintenance is performed without advance notice due to urgency of the maintenance in order to maintain the security and integrity of the system. Notice of Scheduled Maintenance will be provided to Customer's nominated point of contact by a method elected by CORE (telephone, email, fax or pager). CORE's standard Scheduled Maintenance window is between the hours of 1AM and 4 AM Eastern Time. Customer shall be provided 24 hours advance notice in the event a change is made to the standard Scheduled Maintenance window. The CORE ASP Service shall not be deemed unavailable during Scheduled Maintenance. 7. Product Updates and Upgrades. CORE will incorporate periodic updates and upgrades into the CORE ASP Service. CORE will schedule the implementation of major upgrades in cooperation with Customer. Product updates and upgrades will be first implemented in Customer's test environment prior to being implemented in production. Detailed release notes will be provided to the Customer on any update or upgrade. 8. Confidentiality. a. Subject to the provisions of Section 18.b below, CORE shall use commercially reasonable efforts to maintain the confidentiality of data submitted by Customer to the CORE ASP Service. CORE shall not use or disclose Customer's data for any purpose other than (a) the purposes of this Agreement, (b) to conduct CORE's business functions necessary for the operation and maintenance of the CORE ASP Service, and (c) as required by law, rule, or regulation, provided that, prior to making any such required disclosure CORE shall give Customer such notice as may be reasonably possible under the circumstances in order to enable Customer to oppose such disclosure. CORE shall not, however, be required to keep confidential any data or information that is or becomes publicly available, is already rightfully in CORE's possession, is independently developed by CORE outside the scope of this Agreement, or is rightfully obtained from third parties. Notwithstanding the foregoing, CORE shall not disclose to third parties individually identifiable demographic and financial data submitted to the CORE ASP Service, except to employees and contractors assisting CORE with the performance of this Agreement or as required by law. b. The CORE ASP Service and the Documentation are all owned by CORE and protected by copyright and trade secret laws. Customer will take all reasonable steps necessary to protect CORE's proprietary rights in the CORE ASP Service and Documentation, including, but not limited to, the proper display of copyright, trademark, trade secret and other proprietary notices on any copies of the Documentation. Customer will, at its own cost and expense, protect and defend CORE's ownership of the CORE ASP Service and Documentation against all claims, liens and legal processes of Customer's creditors and will keep the City Attorney Approved Version 6/12/18 19 October 30, 2018 Item #3 Page 24 of 44 CORE ASP Service and Documentation free and clear of all such claims, liens and processes. Customer will hold the CORE ASP Service and Documentation in strictest confidence and will not disclose or publish it, or any part of it, to others, except as specifically provided herein. Customer will exercise at least the same degree of care in protecting the CORE ASP Service and Documentation as it would exercise to safeguard the confidentiality of its own computer software. 9. Provision of Data. Customer will be provided with a periodic backup of data in accordance with the schedule and methods delineated in the Specification. Upon termination of this Subscription Agreement for any cause or reason (includ·ing Customer's breach), and upon payment of CORE's then standard charges for time and materials, COREs will provide Customer with a standard final backup of Customer's data in machine readable ASCII format, or such other commercially available database format as may then be in use for the CORE ASP Service. 10. Use of Logos; Linking. Any reference to Customer in marketing and promotional materials will be subject to Customer's prior written approval. All goodwill arising out of CORE's use of Customer's logos shall inure solely to the benefit of Customer. Customer agrees to provide a link between the Customer's Web site and the Business Center ASP. Customer retains all rights, title, and interest in and to Customer's name, trademarks, service marks, trade names, other marketing names and other related textual and graphic materials. 11. Third-Party Licenses. Customer will execute and comply with additional license agreements provided by CORE for software produced by other licensors, including without limitation software described as such in the Schedules, which will be used in connection with the CORE ASP Service. 12. Testing and Acceptance. Customer shall have 30 days to test the CORE ASP Service during the Testing Period to determine whether it functions materially in accordance with the Specifications. The CORE ASP Service will be deemed satisfactory to Customer and Accepted by Customer unless Customer provides notice to CORE within the 30 day period describing in detail any reasonable Deficiencies in the CORE ASP Service. If Customer delivers a timely notice to CORE of any such reasonable Deficiencies during this 30 day period, CORE will correct those Deficiencies sent in said notice that can be repeated by CORE within a reasonable time. If CORE is unable to correct said Deficiencies during the Testing Period within 30 days after receiving notice of such Deficiencies, Customer may elect to return all Equipment provided by CORE, and CORE shall refund to Customer any fees paid to CORE and the Equipment Prices for such Equipment. 13. Warrants and Remedy. a. CORE warrants that the iPayment ASP and Business Center ASP as referenced in section 2 will perform substantially in accordance with the related Documentation from the date of acceptance for the term of this agreement. CORE further represents and warrants that (1) it has the right to grant the licenses granted to Customer under this Agreement for the Software; (2) the Hardware and Software identified in the Schedules constitute all the applications or systems software or interfaces required by Customer to operate the Software; (3) the Software shall be compatible with Customer's existing data files, business information, and systems, as defined in the Documentation such that significant additional applications or systems software or interfaces shall not be required to be produced or procured in order to complete the implementation of the Software; (4) the Software shall be free of any defect in material of the media in which the Software is delivered, or any virus or other program routine designed to erase or otherwise harm Customer's hardware, data, or other programs; (5) the Equipment shall be free of defects in workmanship and materials and shall conform to its published specifications; (6) the Software shall be accompanied by user materials sufficient to explain the operation thereof; and (7) the services shall be performed in a professional and workmanlike manner, according to at least minimum industry standards, and performed by competent personnel. Except as provided in Section 19, CORE's entire liability and Customer's remedy for any breach of this warranty shall be for CORE, at CORE's option, to repair the CORE ASP Service within a reasonable time so that it complies with the warranty or provide notification to the customer of the inability to provide a repair. Upon CORE notification the Customer will notify the CORE within 30 days that (1) the Customer wishes to continue the effected module(s) or (2) the Customer will discontinue use of the effected module(s). CORE will refund all subscription fees paid from the date of warranted issue report to the date of cancellation. b. The warranty will not apply to the CORE ASP Service if there is a Deficiency in the CORE ASP Service or any part thereof which is attributable to inappropriate or unauthorized use of the CORE ASP Service, or accident, neglect, misuse or abuse of the CORE ASP Service attributable to the Customer or any agent of the Customer. City Attorney Approved Version 6/12/18 20 October 30, 2018 Item #3 Page 25 of 44 c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SUBSCRIPTION AGREEMENT, CORE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE CORE ASP SERVICE OR DOCUMENTATION, OR SUPPORT OF THE CORE ASP SERVICE. CORE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT FOR THE CORE ASP SERVICE AND DOCUMENTATION. CORE DOES NOT WARRANT THAT THE CORE ASP SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR WILL BE ERROR-FREE, OR ALL DEFECTS WILL BE CORRECTED. CORE ALSO DOES NOT WARRANT THAT THE CORE ASP SERVICE WILL FUNCTION PROPERLY IN COMBINATION WITH EQUIPMENT OTHER THAN EQUIPMENT SOLD BY CORE TO CUSTOMER, SOFTWARE MADE ACCESSIBLE TO CUSTOMER BY CORE, AND/OR IN ACCORDANCE WITH THE SYSTEM CONFIGURATION REQUIREMENTS. d. CORE ASP Service is provided over the Internet. Customer recognizes that the Internet consists of multiple participating networks which are separately owned and therefore are not subject to the control of CORE. Customer also recognizes that CORE's ability to provide the CORE ASP Service depends on Internet services provided to CORE. Malfunction of or cessation of Internet services by Internet service providers or of any of the networks which form the Internet may make the CORE ASP Service temporarily or permanently unavailable. WITHOUT LIMITING THE PROVISIONS OF THIS AGREEMENT, CUSTOMER AGREES THAT CORE SHALL NOT BE LIABLE FOR DAMAGES INCURRED WHEN INTERNET SERVICES ARE UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF INTERNET SERVICES BY, NETWORK (S) OR INTERNET SERVICE PROVIDERS, OR DUE TO ANY MISUSE, ACCIDENT OR ABUSE BY CUSTOMER OR ITS USER(S). e. CORE will not be liable for unauthorized access to or alteration, theft or destruction of Customer's data files, programs, procedures or information through accident, illegal or fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a result of CORE's gross negligence or willful misconduct. It is Customer's responsibility to validate for correctness all output and reports. CORE will protect Customer's data and programs from loss by performing nightly backup procedures. CORE is responsible to perform annually testing of back-up restoration and report outcome to Customer. f. THE OBLIGATIONS OF CORE AND THE RIGHTS AND REMEDIES OF CUSTOMER SET FORTH IN THIS SUBSCRIPTION AGREEMENT ARE EXCLUSIVE AND ARE GIVEN IN SUBSTITUTION FOR ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF CORE. g. The CORE ASP and data is located and will remain in the continental United States. 14. Support Services. Subject to Customer's compliance with the terms of this Subscription Agreement and in consideration of Customer's payment of the CORE ASP Hosting Fees, CORE will perform the Support described in this section. a. Operating Assistance. CORE will maintain and provide Customer with access to technical assistance and advice in the operation of CORE payment processing and business office products as set forth in this section. CORE will use industry-standard troubleshooting techniques to investigate any Deficiency or other problem submitted by Customer. Should CORE's customer support staff determine that the Deficiency or other problem is the result of Equipment malfunction, CORE will respond in accordance with CORE's Equipment support guidelines. CORE's customer support staff provide the following services to Customer regarding Deficiencies or other problems from the use of the CORE ASP Service: i. Troubleshooting Deficiencies or other problems from the use of the CORE ASP Service where the CORE ASP Service does not appear to be functioning properly, in order to isolate and use commercially reasonable efforts to correct the Deficiency or other problem; ii. Answering questions about Deficiencies or other problems from use of the CORE ASP Service which are not clearly answered in the appropriate manuals; iii. Advising Customer on how to configure the CORE ASP Service and Equipment to suit individual requirements; and iv. Assisting with the implementation of upgrades. City Attorney Approved Version 6/12/18 21 October 30, 2018 Item #3 Page 26 of 44 b. Deficiency Resolution. CORE will use commercially reasonable efforts to resolve each Deficiency. However, Customer understands and agrees that some Deficiencies can only be resolved by additional engineering or programming which may be made available in a future service upgrade. c. Additional Information. CORE will periodically provide information pertaining to current developments in the CORE ASP Service through such means as user meetings, newsletters, special bulletins or industry events. 15. Supplemental Services. CORE will provide Customer with the Supplemental Services described in this section, subject to Customer's payment of additional Support Fees agreed upon by the parties. a. Data Conversion; Services Outside of Normal Hours. CORE shall have the right to charge Customer at CORE's then prevailing rates applicable to such services for the delivery of any Product Upgrades to the CORE ASP Service that require data conversion or labor or which Customer requires to be delivered or installed at times other than CORE's normal business hours. b. Normal Business Hours. Unless otherwise agreed between CORE and Customer in writing, the services described in this section shall be rendered during CORE's normal business hours of 8:30 a.m. to 5:00 p.m. (Eastern Time), Monday through Friday, excluding designated CORE holidays. c. Custom Engineering. CORE shall have the right to charge Customer at CORE's then prevailing rate applicable to such services for the engineering of modifications to the CORE ASP Service requested by the Customer. If applicable, engineering contained within the Final Project Specification is chargeable under the appropriate schedule. d. Training. Customer may purchase additional training services at the CORE's then prevailing rate applicable to such services. 16. Other Customer Responsibilities. a. Customer agrees to limit access to CORE's Support to the designated Authorized Customer Support Contacts listed in the Specification or as amended to this agreement. b. Customer agrees to limit use of Support to occasions when the CORE ASP Service fails to function as described in the Documentation, or Customer requires clarification of the Documentation. Customer agrees to furnish descriptions of Deficiencies in the form requested by CORE's Support staff. Customer also agrees to assist CORE's efforts to duplicate the Deficiency. c. Customer agrees to provide help at the location of the Deficiency when telephone diagnostics and Support are performed. This help includes but is not limited to moving cables, rebooting equipment, following verbal instructions to edit files and search directories, read screens, and any other such help as is required by CORE to effectively diagnose and resolve the Deficiency. Customer's inability or refusal to provide such help or access releases CORE from any obligation to perform Support at that location for that service incident. d. Customer shall be responsible for referring to any instruction manuals provided to Customer to resolve routine system administration tasks. CORE's customer support staff will refer Customer to the appropriate manual or recommend additional training to Customer in those instances where Customer requests Support and CORE's customer support staff determine that Customer's request is more appropriately handled by referring Customer to such sources. e. Customer Authorized Support Contacts must either have participated in training conducted by CORE during the implementation process or in a CORE Payment Processing Specialist training program prior to being designated as an Authorized Support Contact. In most cases, an Authorized Support Contact should be the cashier's immediate supervisor and his or her backup. In organizations where one department is responsible for the iPayment ASP and another for Internet access and/or data communications systems, an additional primary and backup Authorized Support Contact may be designated from each of those two areas, for a total of four Authorized Support Contacts. CORE is not responsible for training of replacement Authorized Support Contacts. Additional training service are available at then current rates. City Attorney Approved Version 6/12/18 22 October 30, 2018 Item #3 Page 27 of 44 17. Limitations of Support. a. Right to Refuse Requests. CORE reserves the right to refuse CORE ASP Service Support requests when: i. A person other than a designated Customer Authorized Support Contact requests Support; ii. Support request procedures or instructions are not followed; or iii. CORE determines that the requested Support would seriously degrade CORE ASP Service performance and/or integrity. b. Non-Supported Matters. CORE will not provide Support for the following: i. Software that has been altered or modified by anyone other than CORE; ii. Third-party consulting services including applications design or recommendation, recovery of lost data due to third-party services, or any third-party Customer purchase recommendations; iii. Deficiencies created by Customer's negligence or fault; iv. Deficiencies resulting from malfunction of equipment other than the CORE authorized Equipment; v. Software not made available to Customer by CORE under this Subscription Agreement and the Schedules. 18. Additional Customer Responsibilities. This section describes the Customer's responsibilities with regard to the CORE ASP Service. The CORE ASP Service is likely to be integrated with many existing and future business functions at Customer's institution, and as a result, other areas of operations affect the success of its installation and operation. In addition to the Customer responsibilities described elsewhere in this Subscription Agreement, the responsibilities set forth below are the sole responsibility of the Customer: a. Electronic Payments. Customer desires to use the current Managed Merchant Services Program for gateway services to process electronic payments such as credit cards or automated clearing house (ACH) debits and agrees to accept the terms and conditions indicated therein: i. For ACH transactions, CORE will submit transactions to the current Managed Merchant Services Program for gateway services and further specified in the contract between Customer and their banking partner. ii. For credit card transactions, CORE will submit transactions to the current Managed Merchant Services Program for gateway and merchant services processing as specified in Amendment 1. iii. Merchant accounts are maintained by the Customer and are the responsibility of Customer. Customer will advise CORE, 90 days in advance, of any changes to Customer's Merchant service provider. b. Portal Integration. Customer is responsible for providing a qualified programmer to integrate the CORE iPayment ASP Module into their internal environment. CORE will provide limited developer consultation to assist Customer's qualified programmer on the use of the integration guides. City Attorney Approved Version 6/12/18 23 October 30, 2018 Item #3 Page 28 of 44 EXHIBIT G SUPPORT AND ESCALATION POLICY This document defines CORE Business Technologies' support and escalation procedures in accordance with the following tables and severity labels. Software support will be conducted by the Core Business Technologies Support Services team at 2224 Pawtucket Avenue, East Providence, RI 02914.ADDRESS Email: softwaresupport@corebt.com Tel: 866-567-2673 Requirements Who is eligible All support and escalation must be initiated by the designated authorized representative of the client. No end user support is provided with this agreement. Support will take affect after basic diagnostic steps have been performed in accordance with the specification document. For system unavailability, system reload must be performed as part of system diagnostics. Process 1. Initiation -The call or email must be initiated by an authorize service representative and must be received through CORE's 1-800 support line, Tel: 866-567-2673, or at softwaresupport@corebt.com, which will be available 24 X 7. 2. Logging -The support request is logged and includes time and date received, name of caller, description of problem and action taken. 3. Acknowledgement -The call is acknowledged and assigned according to the service level table definitions. 4. Service and support -Production support will be attempted by the helpdesk personnel. If a solution cannot be achieved by the Helpdesk, service and support will be performed in accordance with the definitions stated in the Service Level Table. 5. Escalation -Escalation occurs in accordance with urgency and escalation table. 6. Callback -Production support is staffed, Monday through Friday 8:30am through 5:00pm EST. For non-staffed hours, the response times are listed below in the Service Level Table. City Attorney Approved Version 6/12/18 24 October 30, 2018 Item #3 Page 29 of 44 Service Level Table Level Definition Escalation to next point Response Time Coverage 1 Product is down. No workarounds are available. This designation may only be < 2 business hours 24 X 7 CORE places top priority on the technical issue assigned by management. and all necessary resources are immediately assigned to the issue. 2 A majority of the product functionality is not Reviewed daily by support manager. < 4 business hours 7:30am -11 :00pm working according to product specifications. Escalated to senior management for EST CORE places high priority on the technical issue review weekly. Issues which affect and all necessary resources are assigned to the downtime are escalated immediately. technical issue, but work is generally performed during normal business hours. 3 Minor Product functionality is not working Reviewed daily by Software Support < 72 business hours 8:30am -5:00pm according to project specifications, or minor Analyst. Escalated to support EST business processes cannot be met. The issue is manager for review weekly. assigned to the appropriate resources to resolve the technical issue within customer expectations. 4 Product and Project specific enhancement Reviewed weekly based on delivery Delivery will be 8:30am -5:00pm request or change orders. Change orders are or release schedule. Delivery will be quoted with response EST scheduled upon signed acceptance receipt from quoted with response to each specific to each specific Customer. Product enhancement requests are request. request. reviewed by Product Manager periodically in conjunction with release schedule. City Attorney Approved Version 6/12/18 25 October 30, 2018 Item #3 Page 30 of 44 EXHIBIT E Gateway Services Connection 1. Vendor Responsibilities a. CORE will implement credit/debit card processing to the Managed Services Gateway. b. CORE will implement electronic check processing to the Customer designated bank. c. CORE will configure merchant and bank information in accordance with the Managed Services Gateway implementation guide with merchant and bank information. 2. Customer Responsibilities. a. Customer is responsible for setting up and managing the merchant banking and credit card accounts and all associated costs and gateway fees. b. Customer will comply with the rules and regulations governing electronic check (ACH) transactions as published from time to time by the National Automated Clearing House Association. Customer will also comply with the rules, policies and procedures of the payment card issuers. Should Customer be notified by its Vendor(s) in writing that it is not in compliance with such rules, regulations, policies and procedures, Customer will comply within ninety (90) days of receipt of written Vendor notification. If Customer does not or is unable to comply, CORE may terminate this Exhibit immediately. 3. Term and Termination. CORE will provide compliant Gateway Service Connections for the Agreement Term and thereafter from year to year, subject to termination as provided in Section 4 of the Software License and Use Agreement. 4. Limitation of Warranty. CORE MAKES NO WARRANTIES REGARDING THE MANAGED SERVICES GATEWAY SERVICE OR ANY PARTS PROVIDED UNDER EXHIBIT C, INCLUDING WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE FOR THE EQUIPMENT OR SERVICES. City Attorney Approved Version 6/12/18 26 October 30, 2018 Item #3 Page 31 of 44 Client#· 750568 ISAMINCW ACORD™ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYYJ 06/05/2018 THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER{S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy{ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION 15 WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement{s). PRODUCER ~~~~CT Charlotte Carignan USI Insurance Services LLC r..t)gN.ro Extl: 401 558 3104 I rffc,No): 610 537 4819 475 Kilvert Street, Building B ~6'1lJ~ss: charlotte.carignan@si.com Suite 205 INSURER(S) AFFORDING COVERAGE NAIC# Warwick, RI 02886 INSURER A : National Fire Insurance Co. of Hartford 20478 INSURED INSURER B : Continental Casualty Company 20443 ISAM, Inc, Wonderware, Inc INSURER C : Argonaut Insurance Company 19801 dba Core Business Technologies, UCI INSURER D : Beacon Mutual Insurance Company 24017 2224 Pawtucket Ave East Providence, RI 02914 INSURERE: INSURERF: 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 TYPE OF INSURANCE ADDL SUBR ,:~Mg~ .,:~Mg~ LIMITS LTR INSR IWVD POLICY NUMBER A X COMMERCIAL GENERAL LIABILITY C5095789699 10/23/2017 10/23/2018 EACH OCCURRENCE $1 000,000 -:::J CLAIMS-MADE [!] OCCUR ~~~bfflH?E~'1,NJJ~encel $1000000 MED EXP (Any one person) $15,000 ,--- PERSONAL & ADV INJURY $1,000,000 ,--- GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 Fl •PR~ •LOC $2,000,000 POLICY JECT PRODUCTS -COMP/OP AGG OTHER: $ A AUTOMOBILE LIABILITY C5095789704 ,---10/23/2017 10/23/2018 COMBINED SINGLE LIMIT {Ea accidentl $1,000,000 X ANY AUTO BODILY INJURY (Per person) $ -OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ X HIRED X NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY /Per accident\ ,--- $ B ~ UMBRELLA LIAB ~ OCCUR C5095789685 10/23/2017 10/23/201E EACH OCCURRENCE $5 000 000 EXCESSLIAB CLAIMS-MADE AGGREGATE $5.000 000 / DED I xi RETENT10N$10000 $ C WORKERS COMPENSATION WC928198269394 10/23/2017 10/23/201S X l~ifnJTE I l~JH-AND EMPLOYERS' LIABILITY y / N $1 000 000 ANY PROPRIETOR/PARTNER/EXECUTIVE [y] E.L. EACH ACCIDENT OFFICER/MEMBER EXCLUDED? Y N/A (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $1,000,000 If yes, describe under E.L. DISEASE -POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS below A E&O C5095789699 10/23/2017 10/23/2018 5,000,000/5,000,000 / DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) ** Workers Comp Information ** Beacon Mutual Insurance Company--25170-Eff Date: 10/23/2017 Exp Date: 10/23/2018 WC Each Accident Limit: $1,000,000 WC Policy Limit: $1,000,000 (See Attached Descriptions) CERTIFICATE HOLDER CANCELLATION City of Carlsbad/CMWD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attn: IT Department ACCORDANCE WITH THE POLICY PROVISIONS, 1635 faraday Carlsbad, CA 92011 AUTHORIZED REPRESENTATIVE I J>~~y © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) 1 of 2 The ACORD name and logo are registered marks of ACORD #S23225356/M21770578 CXCCB DESCRIPTIONS (Continued from Page 1) WC Each Employee Limit: $1,000,000 The City of Carl bad, its officials, employees and volunteers are additional insured with respect to liability arising out of activities performed by or on behalf of the Named Insured (General Liability only). GL & Auto Liability Additional Insured on a Primary non contributory basis if required by written contract, to the extent insured is held legally liable, and for owned autos only. SAGITTA 25.3 (2016/03) 2 of 2 #523225356/M21770578 t'age l ot U II is understood and agreed that this endorsement amends the COMMERCIAL GENERAL LIABILITY COVERAGE PART as follows. If any other endorsement attached to this policy amends any provision also amended by this endorsement, then that other endorsement controls with respect to such provision, and the changes made by this endorsement with respect to such provision do not apply TABLE OF CONTENTS 1. Additional Insureds 2. Additional Insured -Primary And Non-Contributory To Additional lnsured's Insurance 3. Bodily Injury -Expanded Definition 4. Broad Knowledge of Occurrence/ Notice of Occurrence 5. Broad Named Insured 6. Estates, Legal Representatives and Spouses 7. Expected Or Intended Injury -Exception for Reasonable Force 8. In Rem Actions 9. Incidental Health Care Malpractice Coverage 10. Joint Ventures/Partnership/Limited Liability Companies 11. Legal Liability-Damage To Premises 12. Medical Payments 13. Non-owned Aircraft Coverage 14. Non-owned Watercraft 15. Personal And Advertising Injury-Discrimination or Humiliation 16. Personal And Advertising Injury -Limited Contractual Liability 17. Property Damage -Elevators 18. Supplementary Payments 19. Property Damage -Patterns, Molds and Dies 20. Unintentional Failure To Disclose Hazards 21. Waiver of Subrogation -Blanket 1. ADDITIONAL INSUREDS a. WHO IS AN INSURED is amended to include as an Insured any person or organization described in paragraphs A. through K. below whom a Named Insured is required to add as an additional insured on this Coverage Part under a written contract or written agreement, provided such contract or agreement: (1) is currently in effect or becomes effective during the term of this Coverage Part; and (2) was executed prior to: (a) the bodily injury or property damage; or (b) the offense that caused the personal and advertising injury, for which such additional insured seeks coverage. b. However, subJect alWays to the terms and conditions of this policy. including the limits of insurance, the Insurer will not provide such additional insured with: (1) a higher limit of insurance than required by such contract or agreement; or http:/lformnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 CNA74872XX 0115 Page 2 of 13 (2) coverage broader than required by such contract or agreement, and in no event broader than that described by the applicable paragraph A. through K. below. Any coverage granted by this endorsement shall apply only to the extent permissible by law. A. Controlling Interest Any person or organization with a controlling interest in a Named Insured, but only with respect to such person or organization's liability for bodily injury, property damage or personal and advertising Injury arising out of: 1. such person or organization's financial control of a Named Insured; or 2. premises such person or organization owns, maintains or controls while a Named Insured leases or occupies such premises: provided that the coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. B. Co-owner of Insured Premises A co-owner of a premises co-owned by a Named Insured and covered under this insurance but only with respect to such co-owner's liability for bodily injury, property damage or personal and advertising injury as co-owner of such premises. C. Granter of Franchise Any person or organization that has granted a franchise to a Named Insured, but only with respect to such person or organization's liability for bodily Injury, property damage or personal and advertising Injury as granter of a franchise to the Named Insured. D. Lessor-of Equipment Any person or organization from whom a Named Insured leases equipment, but only with respect to liability for bodily injury. property damage or personal and advertising injury caused, in whole or in part, by the Named lnsured's maintenance, operation or use of such equipment, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. E. Lessor of Land Any person or organization from whom a Named Insured leases land but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of the ownership, maintenance or use of such land, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. F. Lessor of Premises An owner or lessor of premises leased to the Named Insured, or such owner or lessor's real estate manager, but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of the ownership, maintenance or use of such part of the premises leased to the Named Insured, and provided that the occurrence giving rise to such bodily injury or property damage, or the offense giving rise to such personal and advertising injury, takes place prior to the termination of such lease. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. G. Mortgagee, Assignee or Receiver A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee or receiver's liability for bodily injury, property damage or personal and advertising injury arising out of the Named lnsured's ownership, maintenance, or use of a premises by a Named Insured. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 Page 3 of 13 H. State or Governmental Agency or Subdivision or Political Subdivisions -Permits A state or governmental agency or subdivision or political subdivision that has issued a permit or authorization but only with respect to such state or governmental agency or subdivision or political subdivision's liability for bodily injury, property damage or personal and advertising injury arising out of: 1. the following hazards in connection with premises a Named Insured owns, rents, or controls and to which this insurance applies: a. the existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or b. the construction, erection, or removal of elevators; or c. the ownership, maintenance or use of any elevators covered by this insurance; or 2. the permitted or authorized operations performed by a Named Insured or on a Named lnsured's behalf. The coverage granted by this paragraph does not apply to: a. Bodily injury, property damage or personal and advertising injury arising out of operations performed for the state or governmental agency or subdivision or political subdivision; or b. Bodily injury or property damage included within the products-completed operations hazard. With respect to this provision's requirement that additional insured status must be requested under a written contract or agreement. the Insurer will treat as a written contract any governmental permit that requires the Named Insured to add the governmental entity as an additional insured. I. Trade Show Event Lessor 1. With respect to a Named lnsured's participation in a trade show event as an exhibitor. presenter or displayer, any person or organization whom the Named Insured is required to include as an additional insured, but only with respect to such person or organization's liability for bodily injury, property damage or personal and advertising injury caused by: a. the Named lnsured's acts or omissions; or b. the acts or omissions of those acting on the Named lnsured's behalf, in the performance of the Named lnsured's ongoing operations at the trade show event premises during the trade show event. 2. The coverage granted by this paragraph does not apply to bodily injury or property damage included within the products-completed operations hazard. J. Vendor Any person or organization but only with respect to such person or organization's liability for bodily Injury or property damage arising out of your products which are distributed or sold in the regular course of such person or organization's business, provided that 1. The coverage granted by this paragraph does not apply to: a. bodily injury or property damage for which such person or organization is obligated to pay damages by reason of the assumption of liability in a contract or agreement unless such liability exists in the absence of the contract or agreement: b. any express warranty unauthorized by the Named Insured; c. any physical or chemical change In any product made intentionally by such person or organization; d. repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; http:l!fonnnet-ci.cna.comlglhtm/scn 12494.htm 6/5./2018 CNA74872XX 0115 Page 4 of 13 e. any failure to make any inspections, adjustments, tests or servicing that such person or organization has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. demonstration, installation, servicing or repair operations, except such operations performed at such person or organization's premises in connection with the sale of a product; g. products which, after distribution or sale by the Named Insured, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for such person or organization; or h. bodily injury or property damage arising out of the sole negligence of such person or organization for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) the exceptions contained in Subparagraphs d. or f. above; or (2) such inspections, adjustments, tests or servicing as such person or organization has agreed with the Named Insured to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This Paragraph J. does not apply to any insured person or organization, from whom the Named Insured has acquired such products, nor to any ingredient, part or container, entering into, accompanying or containing such products. 3. This Paragraph J. also does not apply: a. to any vendor specifically scheduled as an additional insured by endorsement to this Coverage Part; b. to any of your products for which coverage is excluded by endorsement to this Coverage Part; nor c. if bodily injury or property damage included within the products-completed operations hazard is excluded by endorsement to this Coverage Part. K. Other Person Or Organization/ Your Work Any person or organization who is not an additional insured under Paragraphs A. through J. above. Such additional insured is an Insured solely for bodily injury, property damage or personal and advertising injury Jor which such additional insured is liable because of the Named lnsured's acts or omissions. The coverage granted by this paragraph does not apply to any person or organization: 1. who is specifically scheduled as an additional insured on another endorsement to this Coverage Part; nor 2. for bodily injury or property damage included within the products-completed operations hazard except to the extent all of the following apply: a. this Coverage Part provides such coverage; b. the written contract or agreement described in the opening paragraph of this ADDITIONAL INSUREDS Provision requires the Named Insured to provide the additional insured such coverage; and c. the bodily injury or property damage results from your work that is the subject of the written contract or agreement, and such work has not been excluded by endorsement to this Coverage Part. 2. ADDITIONAL INSURED -PRIMARY AND NON-CONTRIBUTORY TO ADDITIONAL INSURED'S INSURANCE A. The Other Insurance Condition in the COMMERCIAL GENERAL LIABILITY CONDITIONS Section is amended to add the following paragraph: If the Named Insured has agreed in writing in a contract or agreement that this insurance is primary and non-contributory relative to an additional insured's own insurance, then this insurance is primary, http://formnet-ci.cna.com/glhtrn/scn 12494.htm 6/5/2018 Page 5 of 13 and the Insurer will not seek contribution from that other insurance. For the purpose of this Provision 2., the additional insured's own insurance means insurance on which the additional insured is a named insured. B. With respect to persons or organizations that qualify as additional insureds pursuant to paragraph 1.K. of this endorsement, the following sentence is added to the paragraph above: Otherwise, and notwithstanding anything to the contrary elsewhere in th1s Condition, the insurance provided to such person or organization is excess of any other insurance available to such person or organization. 3. BODILY INJURY -EXPANDED DEFINITION Under DEFINITIONS, the definition of bodily injury is deleted and replaced by the following: Bodily injury means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury sustained by that person at any time which results as a consequence of the physical injury, sickness or disease. 4. BROAD KNOWLEDGE OF OCCURRENCE/ NOTICE OF OCCURRENCE Under CONDITIONS, the condition entitled Duties in The Event of Occurrence, Offense, Claim or Suit Condition is amended to add the following provisions: A. BROAD KNOWLEDGE OF OCCURRENCE The Named Insured must give the Insurer or the Insurer's authorized representative notice of an occurrence, offense or claim only when the occurrence, offense or claim is known to a natural person Named Insured, to a partner, executive officer, manager or member of a Named Insured. or to an employee designated by any of the above to give such notice. B. NOTICE OF OCCURRENCE The Named lnsured's rights under this Coverage Part will not be prejudiced if the Named Insured fails to give the Insurer notice of an occurrence, offense or claim and that failure is solely due to the Named lnsured's reasonable belief that the bodily Injury or property damage is not covered under this Coverage Part However, the Named Insured shall give written notice of such occurrence. offense or claim to the Insurer as soon as the Named Insured is aware that this insurance may apply to such occurrence, offense or claim. 5. BROAD NAMED INSURED WHO IS AN INSURED is amended to delete its Paragraph 3. in its entirety and replace it with the following: 3. Pursuant to the limitations described in Paragraph 4. below, any organization in which a Named Insured has management control: a. on the effective date of this Coverage Part; or b. by reason of a Named Insured creating or acquiring the organization during the policy period. qualifies as a Named Insured, provided that there is no other similar liability insurance, whether primary, contributory, excess, contingent or otherwise, which provides coverage to such organization, or which would have provided coverage but for the exhaustion of its limit, and without regard to whether its coverage is broader or narrower than that provided by this insurance. But this BROAD NAMED INSURED provision does not apply to: (a) any partnership or joint venture; or (b) any organization for which coverage is excluded by another endorsement attached to this Coverage Part, For the purpose of this provision, and of this endorsement's JOINT VENTURES/ PARTNERSHIP/ LIMITED LIABILITY COMPANIES provision, management control means: A. owning interests representing more than 50% of the voting, appointment or designation power for the selection of a majority of the Board of Directors of a corporation, or the members of the management board of a limited liability company; or http://fonnnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 CNA74872XX 0115 Page 6 of 13 B. having the right, pursuant to a written trust agreement, to protect, control the use of, encumber or transfer or sell property held by a trust. 4. With respect to organizations which qualify as Named Insureds by virtue of Paragraph 3. above, this insurance does not apply to: a. bodily injury or property damage that first occurred prior to the date of management control, or that first occurs after management control ceases; nor b. personal or advertising injury caused by an offense that first occurred prior to the date of management control or that first occurs after management control ceases. 5. The insurance provided by this Coverage Part applies to Named Insureds when trading under their own names or under such other trading names or doing-business-as names (dba) as any Named Insured should choose to employ. 6. ESTATES, LEGAL REPRESENTATIVES, AND SPOUSES The estates, heirs, legal representatives and spouses of any natural person Insured shall also be insured under this policy; provided, however, coverage is afforded to such estates, heirs, legal representatives, and spouses only for claims arising solely out of their capacity or status as such and, in the case of a spouse, where such claim seeks damages from marital community property, jointly held property or property transferred from such natural person Insured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal representative, or spouse outside the scope of such person's capacity or status as such, provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are Insureds with respect to such spouses' acts, errors or omissions in the conduct of the Named lnsured's business. 7. EXPECTED OR INTENDED INJURY -EXCEPTION FOR REASONABLE FORCE Under COVERAGES, Coverage A -Bodily Injury And Property Damage Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Expected or Intended Injury and replace it with the following: This insurance does not apply to: Expected or Intended Injury Bodily injury or property damage expected or intended from the standpoint of the Insured. This exclusion does not apply to bodily injury or property damage resulting from the use of reasonable force to protect persons or property. 8. IN REM ACTIONS A quasi in rem action against any vessel owned or operated by or for the Named Insured, or chartered by or for the Named Insured, will be treated in the same manner as though the action were in personam against the Named Insured. 9. INCIDENTAL HEAL TH CARE MALPRACTICE COVERAGE Solely with respect to bodily injury that arises out of a health care incident: A. Under COVERAGES, Coverage A -Bodily Injury And Property Damage Liability, the Insuring Agreement is amended to replace Paragraphs 1.b.(1) and 1.b.(2) with the following: b. This insurance applies to bodily injury provided that the professional health care services are incidental to the Named lnsured's primary business purpose, and only if: (1) such bodily injury is caused by an occurrence that takes place in the coverage territory. (2) the bodily injury first occurs during the policy period. All bodily injury arising from an occurrence will be deemed to have occurred at the time of the first act, error, or omission that is part of the occurrence; and B. Under COVERAGES, Coverage A -Bodily Injury And Property Damage Liability, the paragraph entitled Exclusions is amended to: i. add the following to the Employers Liability exclusion: http://formnet-ci.cna.com/glhtrn/scn 12494.htm 6/5/2018 CNA74872XX 0115 Page 7 of 13 This exclusion applies only if the bodily injury arising from a health care incident is covered by other liability insurance available to the Insured (or which would have been available but for exhaustion of its limits). Ii. delete the exclusion entitled Contractual Liability and replace it with the following: This insurance does not apply to: Contractual Liability the lnsured's actual or alleged liability under any oral or written contract or agreement, including but not limited to express warranties or guarantees. iii. add the follolfling additional exclusions. This insurance does not apply to: Discrimination any actual or alleged discrimination, humiliation or harassment, that includes but shall not be limited to claims based on an individual's race, creed, color, age, gender, national origin, religion, disability, marital status or sexual orientation. Dishonesty or Crime Any actual or alleged dishonest, criminal or malicious ac~ error or omission. Medicare/Medicaid Fraud any actual or alleged violation of law with respect to Medicare, Medicaid, Tricare or any similar federal, state or local governmental program. Services Excluded by Endorsement Any health care incident for which coverage is excluded by endorsement. C. DEFINITIONS is amended to: i. add the fol!owing definitions: Health care incident means an act, error or omission by the Named lnsured's employees or volunteer workers in the rendering of: a. professional health care services on behalf of the Named Insured or b. Good Samaritan services rendered in an emergency and for which no payment is demanded or received. Professional health care services means any health care services or the related furnishing of food, beverages. medical supplies or appliances by the following providers in their capacity as such but solely to the extent they are duly licensed as required: a. Physician: b. Nurse; c. Nurse practitioner; d. Emergency medical technician; e. Paramedtc; f. Dentist; g. Physical therapist; h. Psychologist; i. Speech therapist; j. Other allied health professional; or Professional health care services does not include any services rendered in connection with human clinical trials or product testing. http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 CNA74872XX 0115 Page 8 of 13 Ii. delete the definition of occurrence and replace it with the following: Occurrence means a health care incident. All acts, errors or omissions that are logically connected by any common fact, circumstance, situation, transaction, event, advice or decision will be considered to constitute a single occurrence; iii. amend the definition of Insured to: a. add the following: • the Named lnsured's employees are Insureds with respect to: (1) bodily Injury to a co-employee while in the course of the co-employee's employment by the Named Insured or while performing duties related to the conduct of the Named lnsured's business; and (2) bodily injury to a volunteer worker while performing duties related to the conduct of the Named lnsured's business; when such bodily injury arises out of a health care incident. • the Named lnsured's volunteer workers are Insureds with respect to: (1) bodily injury to a co-volunteer worker while performing duties related to the conduct of the Named lnsured's business; and (2) bodily injury to an employee while in the course of the employee's employment by the Named Insured or while performing duties related to the conduct of the Named lnsured's business; when such bodily injury arises out of a health care incident. b. delete Subparagraphs (a), (b), (c) and (d) of Paragraph 2.a.(1) of WHO IS AN INSURED. c. add the following: Insured does not include any physician while acting in his or her capacity as such. D. The Other Insurance condition is amended to delete Paragraph b.(1) in its entirety and replace it with the following: other Insurance b. Excesslnsurance (1) To the extent this insurance applies, it is excess over any other insurance, self insurance or risk transfer instrument, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by the Named Insured to be excess of this coverage. 10. JOINT VENTURES/ PARTNERSHIP/ LIMITED LIABILITY COMPANIES WHO IS AN INSURED is amended to delete its last paragraph and replace it with the following: No person or organization is an Insured with respect to: the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations; nor • the conduct of a current or past limited liability company in which a Named lnsured's interest does/did not rise to the level of management control; except that if the Named Insured was a joint venturer, partner, or member of such a limited liability company, and such joint venture, partnership or limited liability company terminated prior to or during the policy period, then such Named Insured is an Insured with respect to its interest in such joint venture, partnership or limited liability company but only to the extent that: a. any offense giving rise to personal and advertising injury occurred prior to such termination date, and the personal and advertising injury arising out of such offense, first occurred after such termination date; b. the bodily injury or property damage first occurred after such termination date; and http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 U'llf-\ t<+IS I 1.1\..J\. U I I::> Page 9 of 13 c. there is no other valid and collectible insurance purchased specifically to insure the partnership, joint venture or limited liability company. 11. LEGAL LIABILITY-DAMAGE TO PREMISES A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete the first paragraph immediately following subparagraph {6) of the Damage to Property exclusion and replace it with the following: Paragraphs (1), (3) and (4) of this exclusion do not apply to property damage (other than damage by fire, lightning, explosion, smoke or leakage from automatic fire protective systems) to premises rented to the Named Insured or temporarily occupied by the Named Insured with the permission of the owner, nor to the contents of premises rented to the Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in LIMITS OF INSURANCE. B. Under COVERAGES, Coverage A -Bodily ·Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete its last paragraph and replace it with the following: Exclusions c. through n. do not apply to damage by fire, lightning, explosion, smoke or leakage from automatic fire protective systems to premises while rented to a Named Insured or temporarily occupied by a Named Insured with permission of the owner, nor to damage to the contents of premises rented to a Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in the LIMITS OF INSURANCE Section. c. LIMITS OF INSURANCE is amended to delete Paragraph 6. (the Damage To Premises Rented To You Limit) and replace it with the following: 6. Subject to Paragraph 5. above, (the Each Occurrence Limit), the Damage To Premises Rented To You Limit is the most the Insurer will pay under COVERAGE A for damages because of property damage to: a. any one premises while rented to a Named Insured or temporarily occupied by a Named Insured with the permission of the owner, and b. contents of such premises if the premises is rented to the Named Insured for a period of 7 or fewer consecutive days. The Damage To Premises Rented To You Limit is $500,000. unless a higher Damage to Premises Rented to You Limit is shown in the Declarations. D. The Other Insurance Condition is amended to delete Paragraph b.(1)(a)(ii), and replace it with the following (ii) That is property insurance for premises rented to a Named Insured, for premises temporarily occupied by the Named Insured with the permission of the owner; or for personal property of others in the Named lnsured's care, custody or control; E. This Provision 11. does not apply if fiabillty for damage to premises rented to a Named Insured is excluded by another endorsement attached to this Coverage Part. 12. MEDICAL PAYMENTS A. LIMITS OF INSURANCE 1s amended to delete Paragraph 7. (the Medical Expense Limit) and replace it with the following: 7. Subject to Paragraph 5. above (the Each Occurrence Limit), the Medical Expense Limit is the most the Insurer will pay under Coverage C -Medical Payments for all medical expenses because of bodily injury sustained by any one person. The Medical Expense Limit is the greater of: (1) $15.000 unless a different amount is shown here: rarararararararararara-arara: or (2) the amount shown in the Declarations for Medical Expense Limit. B. Under COVERAGES, the Insuring Agreement of Coverage C -Medical Payments is amended to replace Paragraph 1.a.(3){b) with the following: http://formnet-c i.cna.comiglhtm/scn 12494.htm 6/5/2018 CNA74872:XX 0115 Page 10 of 13 (b) The expenses are incurred and reported to the Insurer within three years of the date of the accident; and 13. NON-OWNED AIRCRAFT Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended as follows: The exclusion entitled Aircraft1 Auto or Watercraft is amended to add the following: This exclusion does not apply to an aircraft not owned by any Named Insured, provided that: 1. the pilot in command holds a currently effective certificate issued by the duly constituted authority of the United States of America or Canada, designating that person as a commercial or airline transport pilot; 2. the aircraft is rented with a trained, paid crew to the Named Insured; and 3. the aircraft is not being used to carry persons or property for a charge. 14. NON-OWNED WATERCRAFT Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete subparagraph (2) of the exclusion entitled Aircraft, Auto or Watercraft, and replace it with the following. This exclusion does not apply to: (2) a watercraft that is not owned by any Named Insured, provided the watercraft is: (a) less than 75 feet long; and (b) not being used to carry persons or property for a charge. 15. PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HU Ml LIA TION A. Under DEFINITIONS, the definition of personal and advertising Injury is amended to add the following tort: • Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. B. Under COVERAGES, Coverage B -Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to: 1. delete the Exclusion entitled Knowing Violation Of Rights Of Another and replace it with the following: This insurance does not apply to: Knowing Violation of Rights of Another Personal and advertising injury caused by or at the direction of the Insured with the knowledge that the act would violate the rights of another and would inflict personal and advertising injury. This exclusion shall not apply to discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is not done intentionally by or at the direction of: (a) the Named Insured; or (b) any executive officer, director, stockholder, partner, member or manager (if the Named Insured is a limited liability company) of the Named Insured. 2. add the following exclusions: This insurance does not apply to: Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person by any Insured. Premises Related Discrimination http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 LNA/4~/LXX UI I:> Page 11 of 13 discrimination or humiliation arising out of the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any Insured. Notwithstanding the above, there is no coverage for fines or penalties levied or imposed by a governmental entity because of discrimination. The coverage provided by this PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATION Provision does not apply to any person or organization whose status as an Insured derives solely from Provision 1. ADDITIONAL INSURED of this endorsement; or • attachment of an additional insured endorsement to this Coverage Part. 16. PERSONAL AND ADVERTISING INJURY -LIMITED CONTRACTUAL LIABILITY A. Under COVERAGES, Coverage B -Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Contractual Liability and replace it with the following: This insurance does not apply to: Contractual Liability Personal and advertising injury for which the Insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) that the Insured would have in the absence of the contract or agreement; or (2) assumed in a contract or agreement that is an insured contract provided the offense that caused such personal or advertising injury first occurred subsequent to the execution of such insured contract. Solely for the purpose of liability assumed in an insured contract, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an Insured are deemed to be damages because of personal and advertising injury provided: (a) liability to such party for, or for the cost of, that party's defense has also been assumed in such insured contract; and (b) such attorney fees and litigation expenses are for defense of such party against a civil or alternative dispute resolution proceeding in which covered damages are alleged. B. Solely for the purpose of the coverage provided by this paragraph, DEFINITIONS is amended to delete the definition of insured contract in lts entirety, and replace it with the following: Insured contract means that part of a written contract or written agreement pertaining to the Named lnsured's business under which the Named Insured assumes the tort liability of another party to pay for personal or advertising injury arising out of the offense of false arrest, detention or imprisonment. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. C. Solely for the purpose of the coverage provided by this paragraph, the following changes are made to the Section entitled SUPPLEMENTARY PAYMENTS-COVERAGES A AND B: 1. Paragraph 2.d. is replaced by the following: d. The allegations in the suit and the information the Insurer knows about the offense alleged in such suit are such that no conflict appears to exist between the interests of the Insured and the interests of the indemnitee; 2. The first unnumbered paragraph beneath Paragraph 2.f.(2)(b) is deleted and replaced by the following: So long as the above conditions are met, attorneys fees incurred by the Insurer in the defense of that indemnltee, necessary litigation expenses incurred by the Insurer, and necessary litigation expenses incurred by the lndemnitee at the Insurer's request will be paid as defense costs, Notwithstanding the provisions of Paragraph e.(2) of the Contractual Liability exclusion (as http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 CNA74872XX 0115 Page 12 of 13 amended by this Endorsement), such payments will not be deemed to be damages for personal and advertising injury and will not reduce the limits of insurance. D. This PERSONAL AND ADVERTISING INJURY -LIMITED CONTRACTUAL LIABILITY Provision does not apply if Coverage B -Personal and Advertising Injury Liability is excluded by another endorsement attached to this Coverage Part. 17. PROPERTY DAMAGE-ELEVATORS A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended such that the Damage to Your Product Exclusion and subparagraphs (3), (4) and (6) of the Damage to Property Exclusion do not apply to property damage that results from the use of elevators. B. Solely for the purpose of the coverage provided by this PROPERTY DAMAGE -ELEVATORS Provision, the Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis that is Property insurance covering property of others damaged from the use of elevators. 18. SUPPLEMENTARY PAYMENTS The section entitled SUPPLEMENTARY PAYMENTS-COVERAGES A AND Bis amended as follows: A. Paragraph 1.b. is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000. limit; and B. Paragraph 1.d. is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000. limit. 19. PROPERTY DAMAGE -PATTERNS MOLDS AND DIES Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete subparagraphs (3) and (4) of the Exclusion entitled Damage to Property, but only with respect to patterns, molds or dies that are in the care, custody or control of the Insured, and only if such patterns, molds or dies are not being used to perform operations at the time of loss. A limit of insurance of $25,000 per policy period applies to this PROPERTY DAMAGE -PATTERNS MOLDS AND DIES coverage, and this limit: A. is included within the General Aggregate Limit as described in LIMITS OF INSURANCE; and B. applies excess over any valid and collectible property insurance available to the Insured, including any deductible applicable to such insurance; the Other Insurance condition is changed accordingly. 20. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named lnsured's Coverage Part, the Insurer will not deny coverage under this Coverage Part because of such failure. 21. WAIVER OF SUBROGATION -BLANKET Under CONDITIONS, the condition entitled Transfer Of Rights Of Recovery Against Others To Us is amended to add the following: The Insurer waives any right of recovery the Insurer may have against any person or organization because of payments the Insurer makes for injury or damage arising out of: 1. the Named lnsured's ongoing operations; or 2. your work included in the products-completed operations hazard. However, this waiver applies only when the Named Insured has agreed in writing to waive such rights of recovery in a written contract or written agreement, and only if such contract or agreement: 1. is in effect or becomes effective during the term of this Coverage Part; and 2. was executed prior to the bodily injury, property damage or personal and advertising injury giving rise to the claim. http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018 \...,J'IIJ-\/'tl)/.LAA Ul lJ Page 13 of 13 All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. http://formnet-ci.cna.com/glhtm/scn 12494.htm 6/5/2018