SECOND AMENDMENT TO THE AGREEMENT BETWEEN FIFTH ASSET, INC., A DELAWARE CORPORATION
D/B/A DEBTBOOK AND THE CITY OF REDONDO BEACH
This Second Amendment (this “Second Amendment”) is entered into between the City of Redondo Beach (“Customer”) and Fifth Asset, Inc., a Delaware corporation d/b/a DebtBook (“DebtBook”).
Whereas, the Customer and DebtBook entered into an original Order Form dated May 17, 2022 (the “Agreement”), as such term is defined in the Order Form dated May 17, 2022 (the “Agreement”); Whereas, the Customer and DebtBook entered into a Renewal Order Form Amendment dated May 17, 2023 (the “First Amendment”) extending the term of the Agreement; and
Whereas, the Customer and DebtBook desire to amend the Agreement.
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, and intending to be legally bound, the parties hereby agree to make the following amendments to the Agreement:
Second Amendment Details
Effective Date: 05/17/2024 Billing Frequency: Annual
End Date: 05/16/2026 Payment Terms: Net 30
Amendments. Any reference to the “DebtBook Quote” will mean DebtBook’s pricing document attached as Exhibit A. Any reference to the “Customer Terms” will mean any Customer Terms in the Existing Agreement as amended or supplemented, if applicable, by the additional Customer Terms attached as Exhibit B. Any reference to the “Terms & Conditions” will mean the updated Terms & Conditions attached as Exhibit C. Each exhibit to this Second Amendment is incorporated herein by this reference. Any Notice delivered under the Agreement will be delivered to DebtBook at the address indicated beneath DebtBook’s signature below. Any reference to the “Order Form” will mean this Second Amendment, and any reference to the “Agreement” will mean the Agreement as modified by this Second Amendment.
Term. This Second Amendment establishes a “Renewal Term” beginning on the Amendment Effective Date and remaining in effect for the term indicated in the DebtBook Quote.
Services; Fees. The DebtBook Quote setsforth the Servicesto be provided to Customer under this Second Amendment, including the specific Products to be provided to Customer through its access to the Application Services. During the Renewal Term, DebtBook will charge Customer an annual Subscription Fee as set forth in the DebtBook Quote. To the extent applicable, DebtBook will also charge Customer an Implementation Fee as set forth in the DebtBook Quote for the Premium Implementation Services.
Other Terms. Unless otherwise provided in the Customer Terms, this Second Amendment will become effective on the day immediately following the end of the current Term established in the Agreement and any of its amendments (the “Amendment Effective Date”). Except as expressly provided in this Second Amendment, the terms and provisions of the Agreement will remain unchanged and in full force and effect.
Authority; Execution. Each of the undersigned represents that they are authorized to (1) execute and deliver this Second Amendment on behalf of theirrespective party and (2) bind theirrespective party to the terms of the Agreement, and (3) sufficient funds have been appropriated and are available to pay any Fees due under the Agreement in Customer’s current fiscal year.
FIFTH ASSET, INC., D/B/A DEBTBOOK
By:
Name: Michael Juby
Title: COO
Redondo Beach, CA
By:
Name: James A. Light
Title: ___Mayor__________________________
Date Signed:
Purchase Order Required: Yes No
ATTEST:
________________________________________
Eleanor Manzano, City Clerk
APPROVED AS TO FORM:
__________________________________________
Michael W. Webb, City Attorney
Exhibit A
DebtBook Quote
[See attached.]
Redondo Beach,
CA
415 Diamond Street
Redondo Beach, CA 90277
Prepared For:
Stephanie Meyer | Assistant Financial
Services Director
[email protected]
(310) 697-3134
Prepared By:
Chandler Sas
Customer Success Manager
[email protected]
Notice Address:
PO Box 667950
Charlotte, NC 28266
The Renewal Term under this Renewal Order Form is 2 year(s). The Application Services purchased under this Renewal Order Form include the Products listed below. The Services include the Application Services, the Onboarding Services, the Support Services, and, if applicable for any Product, the Implementation Services option indicated below.
Products
Description
2024 Tier 5 - Lease & SBITA's - 23LSST3-2
DebtBook's Lease management software-as-a-service
application provided, if applicable, to Customer through access to the Application Services.
Year 1
$13,750
Year 2
$14,500
Total Contract Value $28,250
4/18/2024
1 Exhibit B
Customer Terms
The additional terms set forth below constitute “Customer Terms” for all purposes of the Agreement, apply to the Products and Services purchased under this Second Amendment, and modify any conflicting provision in the Agreement.
INSURANCE REQUIREMENTS FOR DEBTBOOK
Without limiting DebtBook’s indemnification obligations under this Agreement, DebtBook shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by DebtBook, its agents, representatives, or employees.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto).
Workers’ Compensation insurance as required by the State of California.
Employer’s Liability Insurance.
Minimum Limits of Insurance
DebtBook shall maintain limits no less than:
General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. The general aggregate limit shall apply separately to this project.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers or (2) DebtBook shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Endorsement:
General Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of work performed by or on behalf of DebtBook. General liability coverage can be provided in the form of an endorsement to DebtBook’s insurance, or as a separate owner’s policy.
Automobile Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of DebtBook.
For any claims related to this project, DebtBook’s insurance coverage shall be primary insurance as respects the City, its officers, elected and appointed officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of DebtBook’s insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.
Each insurance policy shall be endorsed to state that the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverages afforded shall apply as though separate policies had been issued to each insured.
Each insurance policy shall be in effect prior to awarding the contract and each insurance policy or a successor policy shall be in effect for the duration of the project. The maintenance of proper insurance coverage is a material element of the contract and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract on DebtBook’s part.
Acceptability of Insurers
Insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A:VII and which are authorized to transact insurance business in the State of California by the Department of Insurance.
Verification of Coverage
DebtBook shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on the City authorized forms provided with the contract specifications. Standard ISO forms which shall be subject to City approval and amended to conform to the City’s requirements may be acceptable in lieu of City authorized forms. All certificates and endorsements shall be received and approved by the City before the contract is awarded.
Subcontractors
DebtBook shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein.
Exhibit C
DEBTBOOK’S GENERAL TERMS & CONDITIONS
Please carefully read these General Terms and Conditions(these “Terms & Conditions”) which govern Customer’s access and use of the Services described in the Order Form.
By executing the Order Form and using any of the Services, Customer agrees to be bound by these Terms.
1. Definitions.
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by DebtBook in an aggregate and anonymized manner, including statistical and performance information related to the Services. “Agreement” means, collectively and to the extent applicable, the Order Form, any Customer Terms, these Terms & Conditions, and the Incorporated Documents, in each case as may be amended from time to time in accordance with their terms. “Application Obligations” means, collectively, each contractual or financial obligation or agreement managed by Customer using the Products made available to Customer through the Application Services. “Application Services” means the Products and other application-based services that DebtBook offers to Customer through access to the DebtBook application. The specific Products offered to Customer as part of the Application Services are limited to those Products expressly described in any Order Form then in effect. “Appropriate Security Measures” means, collectively, commercially reasonable technical and physical controls and safeguards intended to protect Customer Data against destruction, loss, unauthorized disclosure, or unauthorized access by employees or contractors employed by DebtBook.
“Authorized User” means any of Customer’s employees, consultants, contractors, or agents who are authorized by Customer to access and use any of the Services.
“Customer” means the person or entity purchasing the Services as identified in the Order Form. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Services. “Customer Terms” means the terms set forth in or otherwise identified and incorporated into the Order Form. For the avoidance of doubt, “Customer Terms” does not include any purchase order or similar document generated by Customer unless such document is expressly identified and incorporated into the Order Form. “DebtBook” means Fifth Asset, Inc., d/b/a DebtBook, a Delaware corporation, and its permitted successor and assigns. “DebtBook IP” means (1) the Products, Services, Documentation, and Feedback, including all ideas, concepts, discoveries, strategies, analyses, research, developments, improvements, data, materials, products, documents, works of authorship, processes, procedures, designs, techniques, inventions, and other intellectual property, whether or not patentable or copyrightable, and all embodiments and derivative works of each of the foregoing in any form and media, that are developed, generated or produced by DebtBook arising from or related to the Product, Services, Documentation, or Feedback; and (2) any intellectual property provided to Customer or any Authorized User in connection with the foregoing other than Customer Data. “DebtBook Quote” means any pricing document identified and incorporated into each Order Form that may establish the Products, Services, Term, payment terms, and other relevant details applicable to each Customer purchase of Products and Services under such Order Form.
“Documentation” means DebtBook’s end user documentation and content, regardless of media, relating to the Products or Services made available from time to time on DebtBook’s website at https://support.debtbook.com. “Feedback” means any comments, questions,suggestions, orsimilar feedback transmitted in any manner to DebtBook, including suggestions relating to features, functionality, or changes to the DebtBook IP. “Guided Implementation Services” means DebtBook’s standard Implementation Services option, including basic implementation support, guidance, and training.
“Governing State” means, if Customer is a Government Entity, the state in which Customer is located. If Customer is not a Government Entity, “Governing State” means the State of California. “Government Entity” means any unit of state or local government, including states, counties, cities, towns, villages, school districts, special purpose districts, and any other political or governmental subdivisions and municipal corporations, and any agency, authority, board, or instrumentality of any of the foregoing. “Implementation Services” means DebtBook’s Guided Implementation Services or its Premium Implementation Services, in each case as requested by Customer and as provided to Customer on an annual basis. “Incorporated Documents” means, collectively, the Privacy Policy, the SLA, and the Usage Policy, as each may be updated from time to time in accordance with their terms. The Incorporated Documents, as amended, are incorporated into these Terms & Conditions by this reference. Current versions of the Incorporated Documents are available at https://www.debtbook.com/legal.
“Initial Term” means the Initial Term established in the Order Form. “Onboarding Services” means onboarding services, support, and training as required to make the Application Services available to Customer during the Initial Term.
“Order Form” means each order document (including, if applicable, any DebtBook Quote incorporated therein by reference) duly authorized by Customer and DebtBook for the purchase of any Products or Services in effect from time to time, as each such Order Form may be amended, modified, or replaced in accordance with its terms and these Terms & Conditions. “Premium Implementation Services” means DebtBook’s premium Implementation Services option, including implementation support, guidance, and training, review of Application Obligations, and entry of relevant Customer Data. “Pricing Tier” means, if applicable, Customer’s pricing tier for each Product as of the date of determination. “Privacy Policy” means, collectively, DebtBook’s privacy policy and any similar data policies generally applicable to all users of the Application Services, in each case as posted to DebtBook’s website and as updated from time to time in accordance with their terms.
“Products” means, collectively, any products DebtBook may offer to Customer from time to time through the Application Services, in each case as established in any Order Form then in effect. “Renewal Term” means any renewal term established in accordance with the terms of the Agreement. “Services” means, collectively, the Application Services, the Onboarding Services, the Implementation Services, and the Support Services. For the avoidance of doubt, “Services” includes the underlying Products made available to Customer through access to the Application Services.
“SLA” means the Service Level Addendum generally applicable to all users of the Application Services, as posted to DebtBook’s website and as updated from time to time in accordance with its terms. “Support Services” means the general maintenance services and technical support provided in connection with the Application, as more particularly described in the SLA. “Term” means, collectively, the Initial Term and, if applicable, each successive Renewal Term. “Usage Policy” means, collectively, DebtBook’s acceptable usage policy, any end user licensing agreement, or any similar policy generally applicable to all end users accessing the Application Services, in each case as posted to DebtBook’s website and as updated from time to time in accordance with its terms.
Each capitalized term used but not otherwise defined in these Terms & Conditions has the meaning given to such term in the applicable Order Form.
2. Access and Use.
(a) Provision of Access. Subject to the terms and conditions of the Agreement, DebtBook grants Customer and Customer’s Authorized Users a non-exclusive, non-transferable (except as permitted by these Terms) right to access and use the Application Services during the Term, solely for Customer’s internal use and for the Authorized Users’ use in accordance with the Agreement. DebtBook will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Services.
(b) Documentation License. Subject to the terms and conditions of the Agreement, DebtBook grants to Customer and Customer’s Authorized Users a non-exclusive, non-sublicensable, non-transferable (except as permitted by these Terms) license to use the Documentation during the Term solely for Customer’s and its Authorized User’s internal business purposes in connection with its use of the Services.
(c) Customer Responsibilities. Customer is responsible and liable for its Authorized Users’ access and use of the Services and Documentation, regardless of whether such use is permitted by the Agreement. Customer must use reasonable efforts to make all Authorized Users aware of the provisions applicable to their use of the Services, including the Incorporated Documents.
(d) Use Restrictions. Customer may not at any time, directly or indirectly through any Authorized User, access or use the Services in violation of the Usage Policies, including any attempt to (1) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (2) sell, license, or otherwise transfer or make available the Services or Documentation except as expressly permitted by the Agreement; or (3) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part. Customer will not knowingly transmit any personally identifiable information to DebtBook or any other third-party through the Services. (e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may temporarily suspend Customer’s and any Authorized User’s access to any or all of the Services if: (1) Customer is more than 45 days late in making any payment due under, and in accordance with, the terms of the Agreement, (2) DebtBook reasonably determines that (A) there is a threat or attack on any of the DebtBook IP; (B) Customer’s or any Authorized User’s use of the DebtBook IP disrupts or poses a security risk to the DebtBook IP or to any other customer or vendor of DebtBook; (C) Customer, or any Authorized User, is using the DebtBook IP for fraudulent or other illegal activities; or (D) DebtBook’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (3) any vendor of DebtBook has suspended or terminated DebtBook’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension, a “Service Suspension”). DebtBook will use commercially reasonable efforts to (i) provide written notice of any Service Suspension to Customer, (ii) provide updates regarding resumption of accessto the Services, and (iii) resume providing accessto the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DebtBook is not liable for any damage, losses, or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. (f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, DebtBook may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between DebtBook and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by DebtBook.
DebtBookmay compile Aggregated Statistics based on Customer Data input into the Services. DebtBook may (1) make Aggregated Statistics publicly available in compliance with applicable law, and (2) use Aggregated Statistics as permitted under applicable law so long as, in each case, DebtBook’s use of any Aggregated Statistics does not identify Customer or disclose Customer’s Confidential Information.
3. Services and Support.
(a) Services Generally. Subject to the terms of the Agreement, DebtBook will grant Customer access to the Application Services during the Initial Term and, if applicable, each subsequent Renewal Term. As part of the onboarding process, DebtBook will provide Customer with the Onboarding Services and the level of Implementation Services indicated in the Order Form. DebtBook will provide Customer with the Support Services throughout the Term. (b) Implementation Services. DebtBook will provide Implementation Services for each Product to the extent indicated for such Product in the applicable Order Form. Unless DebtBook has agreed to provide Premium Implementation Services for any such Product in accordance with this subsection, DebtBook will provide Customer with Guided Implementation Services for such Product at no additional charge. At Customer’s request, DebtBook will identify in an Order Form those Products for which DebtBook will provide Premium Implementation Services. For each Product indicated for Premium Implementation Services, DebtBook will charge Customer a one-time Fee for the Premium Implementation Services as set forth in such Order Form. Customer agrees to cooperate in good faith and to respond in a timely manner to any reasonable request for data or information DebtBook may require to complete the Implementation Services. DebtBook is not obligated to provide any Implementation Services after the date that is 180 days after the Effective Date of the Order Form pursuant to which DebtBook is providing such Implementation Services.
(c) Service Levels and Support. Subject to the terms and conditions of the Agreement, DebtBook will make the Application Services and Support Services available in accordance with the SLA.
4. Fees and Payment.
(a) Fees. Customer will pay DebtBook the fees set forth in each Order Form (the “Fees”). DebtBook will invoice Customer for all Fees in accordance with the invoicing schedule and requirements set forth in each Order Form. Customer must pay all Fees in US dollars within 30 days of its receipt of a valid invoice. If Customer is a Government Entity, then Customer’s obligation to pay any Fees under the Agreement is subject in all respects to the requirements and limitations of the Governing State’s prompt payment act, as amended. Except as expressly provided in the Agreement, DebtBook does not provide refunds of any paid Fees. Unless otherwise provided in the Customer Terms, and to the extent permitted by applicable law, if Customer fails to make any payment when due, DebtBook may, without
limiting any of its other rights, charge interest on the past due amount at the lowest of (1) the rate of 1.5% per month, (2) the rate established in any Customer Term, or (3) the maximum rate permitted under applicable law. (b) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Unless Customer is exempt from making any such payment under applicable law or regulation, Customer is responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer under the Agreement, other than any taxes imposed on DebtBook’s income.
5. Confidential Information.
(a) From time to time during the Term, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) information about the Disclosing Party’s business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether in written, electronic, or other form or media, that is marked, designated, or otherwise identified as “confidential”, or which a reasonable person would understand to be confidential or proprietary under the circumstances (collectively, “Confidential Information”). For the avoidance of doubt, DebtBook’s Confidential information includes the DebtBook IP and the Application Services source code and specifications. As used in the Agreement, “Confidential Information” expressly excludes any information that, at the time of disclosure is (1) in the public domain; (2) known to the receiving party at the time of disclosure; (3) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; (4) independently developed by the Receiving Party; (5) required to be disclosed by the receiving party pursuant to law, rule, regulation, subpoena, or court order, including but not limited to the California Public Records Act (CALIFORNIA PUBLIC RECORDS ACT GOVERNMENT CODE SECTION 6250 ET SEQ.); (6) disclosed due to a rule, order, referral, or request, including without limitation any rule, order, referral, or request of Customer’s City Council; or (7) disclosed as part of the Customer’s customary contract approval process. (b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing Party’s Confidential Information in strict confidence and may not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, officers, directors, agents, subcontractors, financial advisors, and attorneys who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations under the Agreement or otherwise in connection with the Services. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order must first give written notice to the other party; or (2) to establish a party’s rights under the Agreement, including to make required court filings.
(c) On the expiration or termination of the Agreement, the Receiving Party must promptly return to the Disclosing Party all copies of the Disclosing Party’s Confidential Information, or destroy all such copies and, on the Disclosing Party’s request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed. (d) Each party’s obligations under this Section are effective as of the Effective Date and will expire three years from the termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. (e) Notwithstanding anything in this Section to the contrary, if Customer is a Government Entity, then DebtBook expressly agrees and understands that Customer’s obligations under this Section are subject in all respects to, and only enforceable to the extent permitted by, the public records laws, policies, and regulations of the Governing State.
6. Intellectual Property.
(a) DebtBook IP. As between Customer and DebtBook, DebtBook owns all right, title, and interest, including all intellectual property rights, in and to the DebtBook IP. (b) Customer Data. As between Customer and DebtBook, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to DebtBook a non-exclusive, royalty-free, worldwide license to reproduce, distribute,sublicense, modify, prepare derivative works based on, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for DebtBook to provide the Services to Customer.
(c) Effect of Termination. Without limiting either party’s obligations under Section 5 of the Agreement, DebtBook, at no further charge to Customer, will (1) provide Customer with temporary access to the Application Services for up to 60 days after the termination of the Agreement to permit Customer to retrieve its Customer Data in a commercially transferrable format and (2) use commercially reasonable efforts to assist Customer, at Customer’s request, with such retrieval.
After such period, DebtBook may destroy any Customer Data in accordance with DebtBook’s data retention policies.
7. Limited Warranties.
(a) Functionality & Service Levels. During the Term, the Application Services will operate in a manner consistent with general industry standards reasonably applicable to the provision of the Application Services and will conform in all material respects to the Documentation and service levels set forth in the SLA when accessed and used in accordance with the Documentation. Except as expressly stated in the SLA, DebtBook does not make any representation, warranty, or guarantee regarding availability of the Application Services, and the remedies set forth in the SLA are Customer’s sole remedies and DebtBook’s sole liability under the limited warranty set forth in this paragraph. (b) Security. DebtBook has implemented Appropriate Security Measures and has made commercially reasonable efforts to ensure its licensors and hosting providers, as the case may be, have implemented Appropriate Security Measures intended to protect Customer Data.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED “AS IS,” AND DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEBTBOOK
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR
THE LIMITED WARRANTY SET FORTH IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS,
OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. (d) DebtBook exercises no control over the flow of information to or from the Application Service, DebtBook’s network, or other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt connections to the Internet.
Although DebtBook will use commercially reasonable effortsto take all actions DebtBook deems appropriate to remedy and avoid such events, DebtBook cannot guarantee that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL
LIABILITY RESULTING FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY.
8. Indemnification.
(a) DebtBook Indemnification.
(i) DebtBook will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Application Services, or any use of the Application Services in accordance with the Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies DebtBook in writing of the Third-Party Claim, reasonably cooperates with DebtBook in the defense of the Third-Party Claim, and allows DebtBook sole authority to control the defense and settlement of the Third-Party Claim. (ii) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at DebtBook’s sole expense and discretion, to (A) modify or replace the DebtBook IP, or component or part of the DebtBook IP, to make it non-infringing, or (B) obtain the right for Customer to continue use. If DebtBook determines that neither alternative is reasonably available, DebtBook may terminate the Agreement in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, so long as, in each case, DebtBook promptly refunds or credits to Customer all amounts Customer paid with respect to the DebtBook IP that Customer cannot reasonably use as intended under the Agreement.
(iii) DebtBook’s indemnification obligation under this Section will not apply to the extent that the alleged infringement arises from Customer’s use of the Application Services in combination with data, software, hardware, equipment, or technology not provided or authorized in writing by DebtBook or modifications to the Application Services not made by DebtBook.
(b) Sole Remedy. SECTION 8(a) SETS FORTH CUSTOMER’S SOLE REMEDIES AND DEBTBOOK’S SOLE LIABILITY FOR
ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL DEBTBOOK’S LIABILITY UNDER SECTION 8(a) EXCEED $1,000,000.
(c) Customer Indemnification. Customer will indemnify, hold harmless, and, at DebtBook’s option, defend DebtBook from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party’sintellectual property rights and any ThirdParty Claims based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by the Agreement. DEBTBOOK EXPRESSLY AGREES THAT THIS PROVISION WILL NOT APPLY TO ANY CUSTOMER
THAT IS A GOVERNMENT ENTITY TO THE EXTENT SUCH INDEMNIFICATION OBLIGATIONS ARE PROHIBITED UNDER APPLICABLE LAW.
9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, including the indemnification obligations set forth in Section 8 and liability arising from DebtBook's gross negligence or willful misconduct, NEITHER PARTY BE
LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS
EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF DEBTBOOK ARISING OUT
OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DEBTBOOK UNDER THE AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO NOT APPLY TO CLAIMS PURSUANT TO SECTION 8.
10. Term and Termination.
(a) Term. Except as the parties may otherwise agree in the Customer Terms, or unless terminated earlier in accordance with the Agreement:
(i) the Agreement will automatically renew for successive 12-month Renewal Terms unless either party gives the other party written notice of non-renewal at least 30 days before the expiration of the then-current term; and
(ii) each Renewal Term will be subject to the same terms and conditions established under the Agreement, with any Fees determined in accordance with DebtBook’s then-current pricing schedule, as provided to Customer at least 60 days before the expiration of the then-current term. (b) Termination. In addition to any other express termination right set forth in the Customer Terms:
(i) DebtBook may terminate the Agreement immediately if Customer breaches any of its obligations under Section 2 or Section 5;
(ii) Customer may terminate the Agreement in accordance with the SLA; (iii) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days afterthe non-breaching party providesthe breaching party with written notice ofsuch breach; (iv) if Customer is a Government Entity and sufficient funds are not appropriated to pay for the Application Services, then Customer may terminate the Agreement at any time without penalty following 30 days prior written notice to DebtBook; or
(v) either party may, to the extent permitted by law, terminate the Agreement, effective immediately on written notice to the other party, if the other party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law.
(c) Survival. Only this Section and Section 1 (Definitions), Sections 4 through 6 (Fees; Confidential Information; Intellectual Property), Section 7(c) (Disclaimer of Warranties), and Sections 8, 9 and 12 (Indemnification; Limitations of Liability; Miscellaneous) will survive any termination or expiration of the Agreement.
11. Independent Contractor. The parties to the Agreement are independent contractors. The Agreement does not create a joint venture or partnership between the parties, and neither party is, by virtue of the Agreement, authorized as an agent, employee, or representative of the other party.
12. Miscellaneous.
(a) Governing Law; Submission to Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the Governing State, without regard to any choice or conflict of law provisions, and any claim arising out of the Agreement may be brought in the state or federal courts located in the Governing State. Each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding, (b) Entire Agreement; Order of Precedence. The Order Form, the Customer Terms, the Terms & Conditions, and the Incorporated Documents constitute the complete Agreement between the parties and supersede any prior discussion or representations regarding Customer’s purchase and use of the Services.
To the extent any conflict exists between the terms of the Agreement, the documents will govern in the following order or precedence: (1) the Customer Terms, (2) Order Form, (3) the Terms & Conditions, and (4) the Incorporated Documents. No other purchasing order or similar instrument issued by either party in connection with the Services will have any effect on the Agreement or bind the other party in any way.
(c) Amendment; Waiver. No amendment to the Order Form, the Terms & Conditions, or the Customer Terms will be effective unless it is in writing and signed by an authorized representative of each party. DebtBook may update the Incorporated Documents from time-to-time following notice to Customer so long as such updates are generally applicable to all users of the Services. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, delay in exercising, or any partial exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or otherwise limit the future exercise of any right, remedy, power, or privilege available under the Agreement. (d) Notices. All notices, requests, consents, claims, demands, and waivers under the Agreement (each, a “Notice”) must be in writing and addressed to the recipients and addressesset forth for each party on the Order Form (or to such other address as DebtBook or Customer may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). (e) Force Majeure. In no event will either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, flood, fire, earthquake, pandemic, epidemic, problems with the Internet, shortages in materials, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, , or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. (g) Assignment. Either party may assign its rights or delegate its obligations, in whole or in part, on 30 days prior written notice to the other party, to an affiliate or an entity that acquires all or substantially all of the business or assets of such party, whether by merger, reorganization, acquisition, sale, or otherwise. Except as stated in this paragraph, neither party may assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. The Agreement is binding on and inures to the benefit of the parties and their permitted successors and assigns. (h) Marketing. Neither party may issue press releases related to the Agreement without the other party’s prior written consent. Unless otherwise provided in the Customer Terms, either party may include the name of the other party in lists of customers or vendors.
(i) State-Specific Certifications & Agreements. If Customer is a Government Entity and to the extent required under the laws of the Governing State, DebtBook hereby certifies and agrees as follows:
(i) DebtBook has not been designated by any applicable government authority or body as a company engaged in the boycott of Israel under the laws of the Governing State; (ii) DebtBook is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in the Agreement by any governmental department or agency of the Governing State;
(iii) DebtBook will not discriminate against any employee or applicant for employment because of race, ethnicity, gender, gender identity, sexual orientation, age, religion, national origin, disability, color, ancestry, citizenship, genetic information, political affiliation or military/veteran status, or any other status protected by federal, state, or local law;
(iv) DebtBook will verify the work authorization of its employees using the federal E-Verify program and standards as promulgated and operated by the United States Department of Homeland Security and, if applicable, will require its subcontractors to do the same; and
(v) Nothing in the Agreement is intended to act as a waiver of immunities that Customer has as a matter of law as a Government Entity under the laws of the Governing State, including but not limited to sovereign or governmental immunity, public officers or official immunity or qualified immunity, to the extent Customer is entitled to such immunities.
(j) Execution. Any document executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be “in writing” to the same extent and with the same effect as if the document had been signed manually.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:
PRODUCER
(A/C, No, Ext): PHONE
INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR WVDADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2016 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
Willis Towers Watson Northeast, Inc.
c/o 26 Century Blvd
P.O. Box 305191
Nashville, TN 372305191 USA
Fifth Asset, Inc., d/b/a DebtBook
1431 W Morehead St. Suite 200
Charlotte, NC 28208
This Voids and Replaces Previously Issued Certificate Dated 02/12/2024 WITH ID: W32660883.
SEE ATTACHED
Redondo Beach, CA
415 Diamond Street
Redondo Beach, CA 90277 04/29/2024 1-877-945-7378 1-888-467-2378 [email protected] Chubb National Insurance Company 10052 Federal Insurance Company Beazley Insurance Company Inc 20281 37540 Evanston Insurance Company 35378 Everspan Indemnity Insurance Company 16882 W33367632 A 1,000,000 1,000,000 15,000 1,000,000 2,000,000 2,000,000 D02044584 11/01/2023 11/01/2024 B 1,000,000 73637301 11/01/2023 11/01/2024 A
5,000,000 10,000 56719236 11/01/2023 11/01/2024 5,000,000 C Employee Theft of Insured Property V369A3240101 02/01/2024 02/01/2025 Limit Each Loss SR ID: 25769357 BATCH: 3438165 $1,000,000 WTW Certificate Center Page 1 of 2 ACORD 101 (2008/01)
The ACORD name and logo are registered marks of ACORD
© 2008 ACORD CORPORATION. All rights reserved.
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE:
ADDITIONAL REMARKS
ADDITIONAL REMARKS SCHEDULE Page of
AGENCY CUSTOMER ID:
LOC #:
AGENCY
CARRIER NAIC CODE
POLICY NUMBER
NAMED INSURED
EFFECTIVE DATE:
Fifth Asset, Inc., d/b/a DebtBook
1431 W Morehead St. Suite 200
Charlotte, NC 28208
The City, its officers, elected and appointed officials, employees, and volunteers are included as Additional Insureds as respects to General Liability.
INSURER AFFORDING COVERAGE: Evanston Insurance Company NAIC#: 35378 POLICY NUMBER: MKLV1WMA000693 EFF DATE: 02/01/2024 EXP DATE: 02/01/2025 TYPE OF INSURANCE: LIMIT DESCRIPTION: LIMIT AMOUNT:
Indemnifiable D&O Liability Aggregate $3,000,000
INSURER AFFORDING COVERAGE: Everspan Indemnity Insurance Company NAIC#: 16882 POLICY NUMBER: EM3EII-AX-000992-01 EFF DATE: 02/01/2024 EXP DATE: 02/01/2025 TYPE OF INSURANCE: LIMIT DESCRIPTION: LIMIT AMOUNT:
Tech E&O/Cyber Liability Aggregate $5,000,000
2 2
Willis Towers Watson Northeast, Inc. See Page 1 See Page 1 See Page 1 See Page 1 25 Certificate of Liability Insurance SR ID: 25769357 BATCH: 3438165 CERT: W33367632 CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 1 of 9
COMMERCIAL GENERAL LIABILITY ENHANCEMENT ENDORSEMENT
Named Insured
FIFTH ASSET, INC. DBA DEBTBOOK
Policy Number
D02044584
Policy Period
11-01-2023 to 11-01-2024
Effective Date of Endorsement
11-01-2023
Name of Company
CHUBB NATIONAL INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
If any other endorsement attached to this policy amends any provision also amended by this enhancement endorsement, then that other endorsement controls with respect to such provision, and the changes made by this enhancement endorsement with respect to such provision do not apply.
TABLE OF CONTENTS
A. Expected Or Intended Injury – Exception For Property Damage Caused By Reasonable Use Of Force B. Non-Owned Watercraft Under 55 Feet
C. Non-Owned Aircraft Exception
D. Damage To Property – Exception For Equipment Loaned Or Rented To The Insured E. Electronic Data – Exception For Physical Injury To Tangible Property F. Pollution – Exception For Damage To Rented Premises Caused By Hostile Fire G. Personal And Advertising Injury Coverage – Contractual Liability Exception For Insured Contracts H. Medical Expenses Coverage – Three Years To Report Expenses I. Supplementary Payments – Increased Limits
J. Who Is An Insured – Subsidiaries Or Newly Acquired Or Formed Organizations – Including New And Existing Subsidiaries, Partnerships, Joint Ventures, Limited Liability Companies K. Who Is An Insured – Employees Including Incidental Healthcare Professional Services L. Additional Insureds
Controlling Interest
Lessors Of Leased Equipment
Managers Or Lessors Of Premises
Mortgagee, Assignee Or Receiver
Other Persons Or Organizations Pursuant To A Contract Or Agreement Trade Show Event Lessor
Vendors
M. Medical Expense Limit – $15,000
N. Knowledge/Notice Of Occurrence
O. Primary And Non-Contributory
P. Unintentional Failure To Disclose Hazards
Q. Waiver Of Subrogation Required By Contract
R. In Rem
S. Coverage Territory – Limited Worldwide
T. Insured Contract Amended – Railroad Limitations Removed A. Expected Or Intended Injury – Exception For Property Damage Caused By Reasonable Use Of Force Exclusion a. under Paragraph 2. Exclusions of Section I – Coverage A – Bodily Injury And Property Damage Liability is deleted and replaced by the following:
CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 2 of 9 a. Expected Or Intended Injury
"Bodily injury" or "property damage" expected or intended from the standpoint of the insured, even if the actual “bodily injury” or “property damage” is of a different degree or type than intended or expected. This exclusion does not apply to "bodily injury" or “property damage” resulting from the use of reasonable force to protect persons or property.
B. Non-Owned Watercraft Under 55 Feet
Paragraph (2) of Exclusion g. under Paragraph 2. Exclusions of Section I – Coverage A – Bodily Injury And Property Damage Liability is deleted and replaced by the following:
This exclusion does not apply to:
(2) A watercraft you do not own that is:
(a) Less than 55 feet long; and
(b) Not being used to carry persons or property for a charge; C. Non-Owned Aircraft Exception
Exclusion g. under Paragraph 2. Exclusions of Section I – Coverage A – Bodily Injury And Property Damage Liability is amended to include the following exception:
This exclusion does not apply to:
(6) An aircraft you do not own provided:
(a) 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; (b) It is rented with a trained, paid crew; and
(c) It does not transport persons or cargo for a charge.
D. Damage To Property – Exception For Equipment Loaned Or Rented To The Insured Exclusion j. under Paragraph 2. Exclusions of Section I – Coverage A – Bodily Injury And Property Damage Liability is amended to include the following exception:
Paragraphs (3) and (4) of this exclusion do not apply to “property damage” to equipment rented or loaned to the insured, provided such equipment is not being used to perform any operations at a construction job site.
E. Electronic Data – Exception For Physical Injury To Tangible Property Exclusion p. under Paragraph 2. Exclusions of Section I – Coverage A – Bodily Injury And Property Damage Liability is deleted and replaced by the following:
p. Electronic Data
Damages arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate electronic data.
However, this exclusion does not apply to:
(1) "Bodily injury"; or
(2) Physical injury to tangible property.
As used in this exclusion, electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment.
F. Pollution – Exception For Damage To Rented Premises Caused By Hostile Fire Exclusion f. under Paragraph 2. Exclusions of Section I – Coverage A – Bodily Injury And Property Damage Liability is amended to include the following exception:
CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 3 of 9 This exclusion does not apply to “property damage” to premises while rented to you or temporarily occupied by you with the permission of the owner and caused by a “hostile fire”, explosion, smoke or leakage from fire protection equipment.
G. Personal And Advertising Injury Coverage – Contractual Liability Exception For Insured Contracts Exclusion e. under Paragraph 2. Exclusions of Section I – Coverage B – Personal And Advertising Injury Liability is deleted and replaced by the following:
e. 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 written contract or agreement that is an “insured contract” provided the “personal and advertising injury” is caused by an offense first committed after the execution of the contract or agreement.
H. Medical Expenses Coverage – Three Years To Report Expenses Subparagraph 1.a.(b) under Section I – Coverage C – Medical Payments is deleted and replaced by the following:
(b) The expenses are incurred and reported to us within three years of the date of the accident; and I. Supplementary Payments – Increased Limits
Paragraph 1. under Section I – Supplementary Payments –Coverages A And B is deleted and replaced by the following:
1. We will pay, with respect to any claim we investigate or settle, or any "suit" against an insured we defend:
a. All expenses we incur.
b. The cost of:
(1) Bail bonds; or
(2) Bonds required to:
(a) Appeal judgments; or
(b) Release attachments;
but only for bond amounts within the available limit of insurance. We do not have to furnish these bonds. c. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $1,000 a day because of time off from work. d. All court costs taxed against the insured in the "suit". e. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer.
f. All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance.
J. Who Is An Insured – Subsidiaries Or Newly Acquired Or Formed Organizations – Including New And Existing Subsidiaries, Partnerships, Joint Ventures, Limited Liability Companies Paragraph 2. under Section II – Who Is An Insured is deleted and replaced by the following:
2. If there is no other insurance available, each of the following is also a Named Insured:
a. A subsidiary organization of the first Named Insured shown in the Declarations of which, at the beginning of the policy period and at the time of loss, the first Named Insured controls, either directly or indirectly, more than 50 percent of the interests entitled to vote generally in the election of the governing body of such CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 4 of 9 organization; or
b. A subsidiary organization of the first Named Insured shown in the Declarations that the first Named Insured acquires or forms during the policy period, if at the time of loss the first Named Insured controls, either directly or indirectly, more than 50 percent of the interests entitled to vote generally in the election of the governing body of such organization.
K. Who Is An Insured – Employees Including Incidental Healthcare Professional Services Paragraph 3.a. under Section II – Who Is An Insured is deleted and replaced by the following:
3. Each of the following is also an insured:
a. Your "employees" but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, no “employee” is an insured for:
(1) "Bodily injury" or "personal and advertising injury":
(a) To you, to any of your directors, managers, members, “executive officers” or partners (whether or not an “employee”) or to any co-“employee” while such injured person is either in the course of his or her employment or while performing duties related to the conduct of your business; (b) To the brother, child, parent, sister or spouse of such injured person as a consequence of any injury described in Paragraph (1)(a) above; or
(c) For which there is any obligation to share damages with or repay someone else who must pay damages because of any injury described in Paragraph (1)(a) or (b) above.
CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 5 of 9 With respect to “bodily injury” only, the limitations described in Paragraph 3.a.(1) above do not apply to:
(i) You or to your directors, managers, members, “executive officers”, partners or supervisors as insureds;
(ii) Your “employees” as insureds, with respect to such damages caused by cardiopulmonary resuscitation or first aid services administered by such an “employee”; or (iii) Your “employees” who are nurses, emergency medical technicians, or paramedics as insureds, with respect to such damages that are caused by providing or failing to provide professional healthcare services, but only if you are not engaged in the business or occupation of providing medical, paramedical, surgical, dental, x-ray or nursing services. (2) "Property damage" to any property owned, occupied or used by you or by any of your directors, managers, members, “executive officers” or partners (whether or not an “employee”) or by any of your “employees”. This limitation does not apply to “property damage” to premises while rented to you or temporarily occupied by you with the permission of the owner.
L. Additional Insureds
Paragraph 3. under Section II – Who Is An Insured is amended by including the following:
Controlling Interest
Any person or organization that has financial control of you or owns, maintains or controls premises while you lease or occupy such premises, but only with respect to their liability arising out of:
(1) Their financial control of you; or
(2) Premises they own, maintain or control while you lease or occupy these premises.
However, no such person or organization is an insured with respect to structural alterations, new construction or demolition operations performed by or for that person or organization.
Lessors Of Leased Equipment
Any person or organization from whom you lease equipment, but only with respect to the maintenance or use by you of such equipment, and only if you are obligated pursuant to a contract or agreement to provide them with such insurance as is afforded by this Coverage Part. However, no such person or organization is an insured with respect to an “occurrence” that takes place, or an offense that is committed, after the equipment lease ends.
Managers Or Lessors Of Premises
Any person or organization from whom you lease premises, but only with respect to the ownership, maintenance or use of that particular part of such premises leased to you and only if you are obligated pursuant to a contract or agreement to provide them with such insurance as is afforded by this Coverage Part. However, no such person or organization is an insured with respect to:
(1) An “occurrence” that takes place, or an offense that is committed, after you cease to be a tenant in such premises; or
(2) Any structural alteration, new construction or demolition operations performed by or on behalf of them.
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 your ownership, maintenance or use of a premises by you. However, no such person or organization is an insured with respect to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured.
Other Persons Or Organizations Pursuant To A Contract Or Agreement Any person or organization that you are obligated pursuant to a contract or agreement to provide with such insurance as is afforded by this policy are insureds.
CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 6 of 9 However, the person or organization is an insured only:
(1) To the extent such contract or agreement requires the person or organization to be afforded status as an insured; (2) For activities that did not occur, in whole or in part, before the execution of the contract or agreement; and (3) With respect to damages, loss, cost or expense for injury or damage to which this insurance applies.
No person or organization is an insured:
(1) That is more specifically identified under any other provision of Section II – Who Is an Insured (regardless of any limitation applicable thereto).
(2) With respect to any assumption of liability (of another person or organization) by them in a contract or agreement. This limitation does not apply to the liability for damages, loss, cost or expense for injury or damage, to which this insurance applies, that the person or organization would have in the absence of such contract or agreement.
Trade Show Event Lessor
With respect to your participation in a trade show event as an exhibitor, presenter or displayer, any person or organization whom you are 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:
(1) Your acts or omissions; or
(2) The acts or omissions of those acting on your behalf, in the performance of your ongoing operations at the trade show event premises during the trade show event.
However, no such person or organization is an insured with respect to “bodily injury” or “property damage” included within the “products-completed operations hazard”.
Vendors
Any person or organization who is a vendor of “your products”, but only with respect to liability for “bodily injury” or “property damage” resulting from the distribution or sale of “your product” in the regular course of their business.
However, no such person or organization is an insured with respect to any:
(1) Assumption of liability (of another person or organization) by them in a contract or agreement. This limitation does not apply to the liability for damages for “bodily injury” or ”property damage” that such person or organization would have in the absence of such contract or agreement; (2) Representation or warranty unauthorized by you;
(3) Physical or chemical change in “your product” made intentionally by the vendor; (4) 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; (5) Failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of “your product”;
(6) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor’s premises in connection with the sale of “your product”; or (7) Of “your products” which, after distribution or sale by you, have been labeled or relabeled or used as a container, ingredient or part of any other thing or substance by or for the vendor.
Further, no person or organization is an insured from whom you have acquired “your product”, or any ingredient, part or container entering into, accompanying or containing “your product”.
Limitations Applicable To Additional Insureds
With respect any person or organization that qualifies as an additional insured under paragraph L. above, the following limitations apply to such insured:
CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 7 of 9 (1) The insurance afforded to such additional insured only applies to the extent permitted by law; and (2) If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured.
Limits Of Insurance Applicable to Additional Insureds
With respect any person or organization that qualifies as an additional insured under paragraph L. above, the following is added to Section III – Limits Of Insurance:
If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance:
(1) Required by the contract or agreement; or
(2) Available under the applicable limits of insurance; whichever is less.
However, the above paragraph shall not increase the applicable limits of insurance.
M. Medical Expense Limit – $15,000
Paragraph 7. under Section III – Limits Of Insurance is amended by including the following:
The Medical Expense Limit is the greater of:
a. $15,000; or
b. The amount shown in the Declarations for the Medical Expense Limit.
N. Knowledge/Notice Of Occurrence
Paragraph 2. under Section IV – Commercial General Liability Conditions is amended to include the following:
f. Knowledge of an “occurrence” or offense by an agent or “employee” of the insured will not constitute knowledge by the insured, unless an “executive officer” (whether or not an “employee”) of any insured or an “executive officer’s” designee knows about such “occurrence” or offense. g. Failure of an agent or “employee” of the insured, other than an “executive officer” (whether or not an “employee”) of any insured or an “executive officer’s” designee, to notify us of an “occurrence” or offense that such person knows about will not affect the insurance afforded to you. h. If a claim or loss does not reasonably appear to involve this insurance, but it later develops into a claim or loss to which this insurance applies, the failure to report it to us will not violate this condition, provided the insured gives us immediate notice as soon as the insured is aware that this insurance may apply to such loss or claim.
O. Primary And Non-Contributory
Subparagraph 4.a. under Section IV – Commercial General Liability Conditions is amended to include the following:
However, if you are obligated to a written contract or agreement to provide a person or organization that is included in Section II – Who Is an Insured with primary insurance such as is afforded by this policy, then this insurance is primary and we will not seek contribution from insurance available to such person or organization.
P. Unintentional Failure To Disclose Hazards
Paragraph 6. under Section IV – Commercial General Liability Conditions is amended to include the following:
Unintentional failure of an “employee” of the insured to disclose a hazard or other material information will not violate this condition, unless an “executive officer” (whether or not an “employee”) of any insured knows about such hazard or other material information.
Q. Waiver Of Subrogation Required By Contract
Paragraph 8. under Section IV – Commercial General Liability Conditions is deleted and replaced by the CB CG 04 0001 0320 Includes copyrighted material of Insurance Services Office, with its permission. Page 8 of 9 following:
8. Waiver Of Subrogation Required By Contract
We will waive the rights of recovery we would otherwise have had against another person or organization, for loss to which this insurance applies, provided the insured has waived their rights of recovery against such person or organization in a contract or agreement that is executed before such loss.
To the extent that the insured’s rights to recover all or part of any payment made under this Coverage Part have not been waived, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and help us enforce them. This paragraph does not apply to Coverage C.
R. In Rem
The following is added to Section IV – Commercial General Liability Conditions:
Any “suit” brought as an action In Rem against any watercraft owned or operated by or for the insured shall in all respects be treated in the same manner as though such “suit” were brought against the insured.