The URL can be used to link to this page

Home My WebLink AboutCAG2021-381 - Original - MySeniorCenter - Equipment, Hardware, Software License & Maintenance - 10/01/2021ApprovalOriginator:Department: Date Sent:Date Required: Authorized to Sign: Director or Designee Date of Council Approval: Grant? Yes No Type:Review/Signatures/RoutingComments: Date Routed to the City Clerk’s Office:Agreement InformationVendor Name:Category: Vendor Number:Sub-Category: Project Name: Project Details: Agreement Amount: Start Date: Basis for Selection of Contractor: Termination Date: Local Business? Yes No* Business License Verification: Yes In-Process Exempt (KCC 5.01.045) If meets requirements per KCC 3.70.100, please complete “Vendor Purchase-Local Exceptions” form on Cityspace. Notice required prior to disclosure? Yes No Contract Number: Agreement Routing Form For Approvals, Signatures and Records Management This form combines & replaces the Request for Mayor’s Signature and Contract Cover Sheet forms. Visit Documents.KentWA.gov to obtain copies of all agreementsadccW22373_1_20 Budget Account Number: Budget? Yes No Dir Asst: Sup/Mgr: Dir/Dep: rev. 20210513 FOR CITY OF KENT OFFICIAL USE ONLY (Optional) * Memo to Mayor must be attached CAG2021-381 EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 1 EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT This Equipment and Hardware Purchase, Software License, and Maintenance Agreement (Agreement) is between the CITY OF KENT (City or Customer), a Washington Municipal Corporation located at 220 Fourth Avenue South, Kent, WA 98032 and Xavus Solutions, LLC (Vendor or MySeniorCenter), organized under the laws of the State of Delaware with its principal place of business at PO Box 55071#30713 Boston, MA 02205-5071, effective on the last date signed below. This Agreement is to obtain access to equipment, hardware, and software provided by Vendor, on an as-needed basis, all of which will continue to be supported and maintained by Vendor under the terms of this Agreement. 1. Description of Work. Vendor shall provide the City with the equipment, hardware, software licenses, and maintenance services identified within parties’ Quote #S-090917-7819, dated July 19, 2021, copies of which are attached and incorporated as Exhibit A. 2. Risk of Loss. The risk of loss of the equipment and hardware identified in Exhibit A shall pass to the City upon the completion of both (a) delivery of that equipment and hardware to: (i) the City’s designated location; or (ii) another location owned or controlled by the City and specified by the City for such delivery; and (b) the signature of the person authorized to receive the delivery. 3. Change Orders. No changes or revisions to the equipment, hardware, software, or maintenance services provided for in Exhibit A, and no additional payment therefore, will be made except pursuant to the terms of this Agreement. 4. City Property. Unless otherwise specified, title to any equipment or hardware provided under this Agreement shall pass to the City upon its acceptance. Vendor shall at all times protect the City’s property and data from injury or loss arising in connection with this Agreement. 5. Grant of License to Access and Use Software. For the term of this Agreement including any renewal or extension, Vendor hereby grants to City, including to all its Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use Vendor’s MySeniorCenter programs (the "software") for the City’s non-commercial government operations as further described in the attached and incorporated Exhibit A. City shall refrain from taking any steps such as reverse assembly or reverse compilation, to derive a source code equivalent to the software as further described in Section 10.3. 3. Term. The initial term of this Agreement shall be one (1) year expiring on September 30, 2022 (Initial Term), with the option for the City to renew annually. This Agreement shall automatically renew for a Renewal Term unless City gives written notice of cancellation at least 30 days prior to the expiration of the Initial Term or any Renewal Term. Any reference in this Agreement to “days” shall mean “calendar days” unless a different meaning is expressly stated. 4. Subscription Fees/Taxes. 4.1 Fees for Goods and Services. In consideration of the Vendor providing the City with the equipment, hardware, software licenses, and maintenance services as provided for in this Agreement, the City agrees to pay the Vendor the amounts provided for in Exhibit A. Vendor shall be paid in accordance with the following schedule: EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 2 • Upon full execution of this Agreement, Vendor shall remit a payment invoice to the City in the amount of $5,225.00, plus any tax due, which amount represents 50% of the cost of the equipment, hardware, software licenses, and maintenance services for the Initial Term. • Upon Kent’s having completed installation and configuration of the equipment, and Vendor’s completion of training services, the Vendor shall invoice the City in the amount of $5,225.00, plus any tax due, which amount represents the remaining 50% of the cost of the equipment, hardware, software licenses, and maintenance services for the Initial Term. • 45 days before the commencement of any Renewal Term, Vendor shall invoice the City $1800, plus any tax due, which amount represents the full cost for 12 months of access to the software and maintenance services through the software licenses provided under this Agreement, from October 1 through September 30 of each Renewal Term. 4.2 Undisputed Fees. Undisputed invoices shall be due and payable within 30 days of invoice receipt. City shall notify Vendor in writing of any disputed amount within 15 business days of receipt of the applicable invoice. Portions of invoices that are subject to a good faith billing dispute shall not be considered delinquent for purposes of this Agreement. Disputed billings are subject to Section 17.2, Dispute Resolution. 4.3. Taxes. All contract amounts shall be inclusive of sales or other applicable taxes, and invoices shall include all tax obligations stated separately from the contract amounts. City shall pay all applicable sales, use, value added or similar taxes to Vendor and Vendor shall remit all such taxes, if imposed by local and/or state authorities on all software, and other taxable goods and services procured by the City under this Agreement. 4.4 Card Payment Program. The Vendor may elect to participate in automated credit card payments provided for by the City and its financial institution. This Program is provided as an alternative to payment by check and is available for the convenience of the Vendor. If the Vendor voluntarily participates in this Program, the Vendor will be solely responsible for any fees imposed by financial institutions or credit card companies. The Vendor shall not charge those fees back to the City. 5. System Availability and Support Services. The City’s license to access and use the software will be available to the City throughout the term of this Agreement, along with maintenance and support services as described in the attached and incorporated Exhibit B. 6. Representation and Warranties. 6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, and shall have obtained and continue to maintain all licenses, permits, and certifications required for such Party in connection with the performance of this Agreement; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid, and binding obligation when signed by both Parties. 6.2 Vendor Warranties and Representations. Vendor represents and warrants as follows: EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 3 a. It will faithfully and satisfactorily perform in accordance with the provisions of this Agreement. In addition, all services or other work performed by Vendor will be performed in a professional and workmanlike manner, consistent with applicable industry standards, and the corresponding specifications set forth in the applicable statement of work and service level commitments. b. For all deliverables, including but not limited to, equipment, hardware, software, and third-party products provided by Vendor, Vendor shall be the primary point of contact and shall be responsible for coordinating the delivery of all products to the City and taking commercially reasonable action to cause the products to conform to and be delivered as provided by this Agreement. Without limiting the foregoing, if any of Vendor’s subcontractors shall fail to deliver the products as required, Vendor shall take commercially reasonable action as the City may request to enforce the terms of any subcontract agreement between Vendor and its subcontractor. c. All software, in whole and in part, shall operate: in accordance with applicable specifications and the requirements of this Agreement; in accordance with the description of the functions and capabilities as described in Vendor’s documentation, provided that the software are properly used in accordance with Vendor’s instructions; and shall operate and be maintained error free, or if errors occur, Vendor will timely correct, update, or modify the software to correct those errors; throughout the term of this Agreement, including any renewal or extension thereof. All equipment and hardware is subject to the terms of the original equipment manufacturer. d. The deliverables provided under this Agreement are subject to all warranty provisions established under the Uniform Commercial Code, Title 62A, Revised Code of Washington. e. It will promptly correct all defects in workmanship and materials: (1) when the Vendor knows or should have known of the defect, or (2) upon the Vendor’s receipt of notification from the City of the existence or discovery of the defect. The Vendor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect, unless this Agreement provides otherwise. If the Vendor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Vendor shall pay all costs incurred by the City in order to accomplish the correction. f. Vendor is the owner of the software licensed hereunder, or otherwise has the right to grant to the City, the licensed rights to access the software through this Agreement without violating any rights of any third-party worldwide. Vendor is not aware of any claim, investigation, litigation, action, suit or administrative or judicial proceeding pending or threatened based on claims that Vendor’s software infringes or misappropriates any patents, copyrights, trade secrets or other intellectual property rights of any third-party; and Vendor’s software does not knowingly infringe upon or misappropriate any patents, copyrights, trade secrets or any other intellectual property rights of any third-party. g. In performing the maintenance services under the Agreement, Vendor shall substantially and materially comply with the descriptions and representations as to those services, including performance capabilities, accuracy, completeness, characteristics, Statement of Work, configurations, standards, function, and requirements. Additionally, vendor will: i Promptly and diligently perform and reperform services which are not in compliance with documentation/specifications, representations, and warranties at no additional cost to the City; ii Maintain the software in accordance with the specifications and terms of this Agreement and meet all availability and system performance service levels as specified in this Agreement. In the event the services require EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 4 failover activities, then Vendor shall be responsible for continuance of the services and the City shall not be subject to additional costs unless otherwise specified in this Agreement. iii Promptly coordinate with the City all tasks related to correcting problems and deficiencies connected with the equipment, hardware, and software. iv Not disable any City software, including Vendor’s software, without notice to and agreement by the City. v Refund to the City fees previously paid for any unused term and for the time for which a deficiency existed that the Vendor was unable to remedy, if the City elects to terminate this Agreement due to that deficiency. h. Vendor’s performance under this Agreement will comply with all applicable federal, state, and local laws, regulations, codes, and ordinances to which it is subject. Vendor will, throughout the term of this Agreement, including any renewal or extension thereof, comply with changes to and new applicable federal, state, and local laws, regulations, codes, and ordinances to which it is subject. Vendor will comply with all applicable local, state, and federal licensing, accreditation, and registration requirements and standards necessary in the performance of this Agreement. 7. Vendor Maintenance Services. 7.1 During the term of this Agreement, Vendor will provide maintenance support and warranty services as provided for in Exhibit A, which include updates, upgrades, modifications, customized interfaces and enhancements to the software, and any subsequent versions thereof. Subject to the terms and conditions of this Agreement, Vendor shall provide software support via telephone, web, remote access and electronic mail when necessary. To enable Vendor to provide effective support, the City will establish remote access procedures. The maintenance services provided by Vendor shall include the following: a. Provide users with verbal or electronic telephone responses to specific, discrete and descriptive inquiries on the use and operation of the equipment, hardware, and software provided through this Agreement. Service shall be provided by telephone contact with Vendor’s offices during the hours provided for in Exhibit B. b. If errors of functional operation are identified by the City and determined by the Vendor to exist in the software, corrections will be made and corrected versions of the software will be provided to the City through media acceptable to the City (web, remote access, email, or on CD). c. If the City loses or destroys all copies of the supplied software being maintained under this Agreement, Vendor will provide replacements for that software, at Vendor’s cost. Such replacements will not include replacement of City data. e. After updates, upgrades, modifications, customized interfaces or enhancements are made to the software, Vendor will make them available to the City, at no additional charge, within 30 days of their release to other licensees of the software, on media acceptable to the City (web, remote access, email, or on CD) so that the maintained software is current with the latest version being sold while maintaining for the City the same level of functionality that it had with respect to the software immediately prior to the installation of such EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 5 upgrade, update, modification, customized interface or enhancement. All costs pertaining to the creation and installation of such upgrades, updates, modifications, customized interfaces and enhancements shall be borne by the Vendor. If Vendor has any third-party product(s) embedded in its own product or system, and such third-party product has been upgraded or a new release has been issued, vendor certifies that its own product or system will be upgraded, within 18 months, to integrate with the upgrade or issuance of the new release of the third-party product. f. As needed to resolve problems or upon request from the City, Vendor will be provided remote access to the equipment, hardware, and software. The preferred method for Vendor access to City systems is through a VPN (virtual private network) or any other designated connection. To enable Vendor to provide effective support, the City will establish a dedicated 24 hour per day, 7 days per week, unassisted remote access to allow Vendor to access the software effectively. Vendor must agree to abide by the conditions set forth in any City network usage policy and apply due diligence in maintaining security on Vendor’ own network. g. Vendor will comply with the service level and response procedures provided for in Exhibit B for responding to incident reports and targets for correcting software errors or otherwise responding to issues concerning the software. 7.2 Ownership. City owns all of the information and materials that it submits, uploads or transfers, or causes to be submitted, uploaded, or transferred utilizing Vendor’s software (City’s Data). 7.3 Data Protection. Vendor shall maintain and handle all of City’s Data with commercially reasonable physical, electronic, and procedural safeguards to protect and preserve the confidentiality and security of City’s Data (including personal information) in accordance with applicable data protection legislative requirements and as further described in Vendor’s policies which should reflect the highest industry standards for privacy and security, which applicable policies are incorporated herein by reference. 7.4 Data Restrictions. Vendor shall restrict access to City Data to Vendor employees, affiliates' employees, or others who need to know that information to provide services to City. City Data shall be stored and hosted within the United States of America. Vendor will use City Data for the purposes described in this Agreement. Vendor will not sell, license, transmit or disclose this information outside of Vendor’s business unless: (1) City expressly authorizes Vendor to do so; (2) it is necessary to allow Vendor’s Licensors to perform services under this Agreement); (3) in order to provide Vendor’s products or services to City; (4) otherwise as Vendor is required by law after written notice to City of such requirement. Notwithstanding the foregoing, Vendor is responsible for any disclosures of City Data by Vendor’s Licensors made contrary to the terms of this Agreement. 7.5 Data Backup. Vendor shall protect City’s data by having a backup system that includes running the Vendor’s Service on geographically dispersed data centers with extensive backup, data archive, and failover capabilities. Disaster recovery plan shall include: (1) Data backup procedures that create multiple backup copies of City’s data, in near real time, at the disk level; and (2) A multi- level backup strategy that includes disk-to-disk-to-tape data backup in which tape backups serve as a secondary level of backup, not as the primary disaster-recovery data source; or other data backup system providing at least the same or higher protection of City’s Data in the event of a potential data loss. 8. Intellectual Property Ownership. Vendor (and its Licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the software. This Agreement, does not convey to City any rights of ownership in or to the Vendor’s software or the intellectual property rights owned by Vendor and its Licensors, where applicable. EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 6 9. Non-Disclosure of Confidential Information. The Parties’ obligations regarding non- disclosure of Confidential Information is contained in the attached and incorporated Exhibit C. All Confidential Information is and shall remain the property of its owner to the extent consistent with applicable law. The disclosure of Confidential Information to the other party does not grant to it any express or implied right to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. 10. City Obligations. 10.1 Equipment, Hardware, and Software Obligations. Except for the equipment, hardware, and software identified in Exhibit A, the provision and maintenance of which is part of Vendor’s required performance under this Agreement, the City shall be responsible for obtaining and maintaining all other computer equipment, hardware, software, and communications equipment needed to access and utilize the software. 10.2 Anti-Virus Obligations. The City will use commercially reasonable efforts to safeguard against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses") that may reasonably affect the performance of Vendor’s software. 10.3 Restricted Uses. The City will not: a. knowingly upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the software, b. modify, disassemble, decompile or reverse engineer the software or pre-release equipment or hardware devices or software disclosed, c. copy, reproduce, resell or commercially exploit the software, d. reverse engineer, decompile or disassemble any software code and/or pre- release equipment or hardware devices disclosed. 11. Indemnification Obligations. 11.1 City Indemnification Obligations. Subject to Section 11.3 below, City shall defend, indemnify, and hold Vendor and its parent organizations, subsidiaries, Affiliates, officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third-party claim alleging that the use of City Data infringes the rights of, or has caused harm to, a third-party; (ii) a third-party claim alleging a breach of any of City’s representations and warranties; or (iii) a third-party claim alleging City’s use of Confidential Information or intellectual property rights of Vendor or its Licensors is in violation of this Agreement; (iv) third-party claim of injury or death to person or damage to property arising from City’s negligence. 11.2. Vendor Indemnification Obligations. Subject to Section 11.3 below, Vendor shall defend, indemnify, and hold City and its elected officials, officers, employees, agents and attorneys harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) a third-party claim alleging that the equipment, hardware, or software provided, maintained, and supported by Vendor infringes or misappropriates the rights of, or has caused harm to, a third-party; (ii) a third- party claim alleging a breach of any Vendor representations and warranties in this Agreement; (iii) a third-party claim alleging Vendor’s use of City Data is in violation of this Agreement; or (iv) a third- party claim alleging a breach of Vendor’s confidentiality or data security obligations, that infringes EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 7 the rights of, or has caused harm to, a third-party, (v) third-party claim of injury or death to person or damage to property arising from Vendor’s negligence. 11.3 As an express condition of the foregoing indemnification obligations, the parties hereby agree that: a. the indemnified party shall promptly notify the indemnifying party in writing for any claim for which indemnification is sought; b. the indemnified party shall cooperate with all reasonable requests of the indemnifying party (at the indemnifying party’s expense) in defending or settling such claim. c. the indemnifying party shall be allowed to control the defense and settlement of such claim; d. the indemnifying party may not settle any claim that includes an admission of liability, fault, negligence or wrongdoing on the part of the indemnified party unless the indemnified party provides prior written consent, e. the indemnified party shall have the right, at its option and expense, to participate in the defense of any action, suit or proceeding relating to such a claim through counsel of its own choosing; f. each indemnified party will undertake commercially reasonable efforts to mitigate any loss or liability resulting from an indemnification claim related to or arising out of this Agreement. 12. Limitation of Liability 12.1. EXCEPT FOR CLAIMS ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY AND SECURITY OBLIGATIONS, REPRESENTATIONS AND WARRANTIES, AND INTELLECTUAL PROPERTY INFRINGEMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE PARTY’S STATED INSURANCE LIABILITY CAP. 12.2. NEITHER PARTY WILL BE LIABLE FOR BREACH-OF-CONTRACT DAMAGES SUFFERED BY THE OTHER PARTY THAT ARE REMOTE OR SPECULATIVE, OR THAT COULD NOT HAVE REASONABLY BEEN FORESEEN ON ENTRY INTO THIS AGREEMENT. 12.3. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. 13. Insurance. Vendor shall maintain insurance that is sufficient to protect its business against all applicable risks, at a minimum as set forth in the attached and incorporated Exhibit D, "Insurance Requirements." Vendor shall promptly provide City with certificates of insurance to evidence Vendor's continued compliance with Exhibit D. 14. Termination of Agreement. 14.1 Termination for Convenience. Either party may terminate this Agreement without cause. In the event of such desire, the City may terminate upon giving the Vendor 60 days advance written notice of termination, and the Vendor upon giving the City 180 days advance written notice of termination. EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 8 14.2 Termination by City for Cause. In addition to any other rights granted to City in this Agreement or under law, City has the right to terminate this Agreement upon written notice due to: a. a material breach of a term, representation, or warranty under this Agreement (including a material breach under any incorporated attachment, addendum and/or exhibit to this Agreement) by Vendor of any of its subcontractors or licensors of services if such material breach is not remedied within 30 days following receipt of written notice from City; or b. a third-party’s claim that Vendor’s hardware, software, or any other services and products provided to the City by Vendor or its subcontractors or Licensors or other third-parties and the intellectual property rights associated therewith, infringes upon such third-party’s intellectual property rights. c. City Council fails to appropriate funds for payment of Vendor’s products or services under this Agreement. d. Vendor files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within 60 days of the filing thereof.. 14.3 Termination By Vendor for Cause. In addition to any other rights granted to Vendor in this Agreement or under law, Vendor reserves the right, upon written notice to City, to terminate this Agreement due to: a. any undisputed amounts City owes that are delinquent greater than 90 days; or b. a material breach of the terms of this Agreement, other than a payment obligation, by City or its users if such breach is not remedied within 30 days following receipt of written notice of such breach from Vendor to City; or c. a third-party’s claim that City’s Data, and/or intellectual property infringes upon such third-party’s rights. 14.4 No Suspension of Service. Provided City continues to timely make all undisputed payments, Vendor warrants that during the term of this Agreement, Vendor will not withhold Services provided herein, for any reason, including but not limited to a dispute between the parties arising under this Agreement, except as may be specifically authorized herein. 14.5 Effect of Termination. a. If City terminates for cause or Vendor terminates without cause, City will only be obligated to pay the amounts then due for services provided meeting Vendor’s contractual commitments as calculated up to the date of termination and, if applicable, City will be reimbursed a prorated amount of unused, prepaid fees. b. If Vendor terminates for cause that City does not dispute or if City terminates without cause and a balance is still due on City’s account, then City agrees that Vendor may bill City for such unpaid fees due up to the date of termination. c. In the event this Agreement terminates for any reason, Vendor shall provide the City a file of City’s Data in either MSFT SQL Server database back-up or MSFT Excel file format to City within 30 days of the effective date of termination. City shall have 60 days following termination to notify Vendor if litigation, laws, regulations, or other lawful process requires Vendor EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 9 retain City’s data beyond the termination of this Agreement. City will thereafter promptly notify Vendor when such litigation, laws, regulations, or other lawful process no longer requires Vendor maintain the City’s data. Vendor may dispose of City’s data at Vendor’s expense as permitted by law 61 days after termination, if City provides no notice otherwise; or after City notifies Vendor there are no laws, regulations, litigation, etc. requiring further retention. Retained data is subject to the confidentiality provisions of the Agreement. 15. Remedies. Termination of this Agreement shall not affect any right of action of either party prior to the termination being affected. All remedies shall be cumulative and may be exercised concurrently, or separately, which shall not be deemed to constitute an election of any one remedy to the exclusion of any other. In addition to any other remedy provided for herein, or at law or equity, City shall have the right to recover from Vendor all damages reasonably caused by default of any representation or warranty. This paragraph shall not limit City’s right to pursue any other remedy available to it in law, at equity or pursuant to this Agreement. 16. Non-Discrimination. In the hiring of employees for the performance of this Agreement or any subcontract, the Vendor, its subcontractors, or any person acting on behalf of the Vendor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. The Vendor shall execute the City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the Compliance Statement, all attached and incorporated as Exhibit E. 17. General Provisions 17.1 Governing Law and Venue. The Agreement will be governed by the laws of Washington and its choice of law rules. Vendor irrevocably consents to the exclusive personal jurisdiction and venue of the federal and state courts located in King County, Washington, with respect to any dispute arising out of or in connection with the Agreement and agrees not to commence or prosecute any action or proceeding arising out of or in connection with the Agreement other than in the aforementioned courts. 17.2. Dispute Resolution. The City and Vendor desire, if possible, to resolve disputes, controversies and claims (Disputes) arising out of this Agreement without litigation. To that end, upon written notification of dispute by a party to the other, each party shall appoint a knowledgeable, responsible management representative to meet and negotiate in good faith to resolve any Dispute arising under this Agreement. If the parties are unable to settle any Dispute, the exclusive means of resolving that Dispute shall only be by filing suit as provided for under Section 17.1, unless the parties agree in writing to an alternative dispute resolution process. 17.3 Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provision will continue in full force without being impaired or invalidated in any way. The City and Vendor agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. 17.4. Nonwaiver. Any failure by either party to enforce strict performance of any provision of the Agreement will not constitute a waiver of the its right to subsequently enforce such provision or any other provision of the Agreement. 17.5 No Assignment. Either party may assign this Agreement and all of its rights and obligations hereunder as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets so long as said assignee accepts all of the respective Agreements rights and obligations of its predecessor as provided in this Agreement without limitation. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or obligations under EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 10 this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. 17.6 Notices. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. Either party may change its address by giving written notice of such change to the other party. 17.7 Legal Fees. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit either party’s right to indemnification under Section 11 of this Agreement. 17.8. Force Majeure. Neither party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood, or other natural disaster or acts of government (“force majeure event”). Performance that is prevented or delayed due to a force majeure event shall not result in liability to the delayed party. Both parties represent to the other that at the time of signing this Agreement, they are able to perform as required and their performance will not be prevented, hindered, or delayed by the current COVID-19 pandemic, any existing state or national declarations of emergency, or any current social distancing restrictions or personal protective equipment requirements that may be required under federal, state, or local law in response to the current pandemic. If any future performance is prevented or delayed by a force majeure event, the party whose performance is prevented or delayed shall promptly notify the other party of the existence and nature of the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be effective only to the extent and duration of the force majeure event causing the prevention or delay in performance and, provided, that the party prevented or delayed has not caused such event to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. Notwithstanding other provisions of this section, the Vendor shall not be entitled to, and the City shall not be liable for, the payment of any part of the contract price during a force majeure event, or any costs, losses, expenses, damages, or delay costs incurred by the Vendor due to a force majeure event. Performance that is more costly due to a force majeure event is not included within the scope of this Force Majeure provision. If a force majeure event occurs, the City may direct the Vendor to restart any work or performance that may have ceased, to change the work, or to take other action to secure the work or the project site during the force majeure event. The cost to restart, change, or secure the work or project site arising from a direction by the City under this clause will be dealt with as a change order, except to the extent that the loss or damage has been caused or exacerbated by the failure of the Vendor to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be borne by the Vendor. 17.9 Independent Contractor. City and Vendor intend that an independent Contractor relationship be created with this Agreement. Vendor shall not be considered an agent or employee of City for any purpose and the employees of Vendor are not entitled to any of the benefits that City provides for its employees. Nor shall this Agreement be evidence of a joint venture between Vendor and City. EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 11 17.10 Problem Notification. Each party will promptly notify the other in writing of any events or circumstances that will affect the performance of its obligations under this Agreement including the delivery of any deliverable or delay in completion of any of its obligations. Vendor shall notify City in writing of all material defects in the hardware or software, whether discovered by other parties or by Vendor, within five (5) business days of their discovery and fix or replace the affected hardware or software within a commercially reasonable time. A defect is considered material if it has the potential to delay or inhibit the primary functionality of the software or if said defect has the potential to corrupt City data. 17.11 Entire Agreement/Modification. This Agreement, together with all exhibits comprise the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may be amended, modified, or added to only by written instrument properly signed by both parties hereto. 17.12 Public Records Act. The Vendor acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by the Vendor in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Vendor agrees to cooperate fully with the City in satisfying the City’s duties and obligations under the Public Records Act. 17.13 City Business License Required. Prior to commencing performance under this Agreement, Vendor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. 17.14 Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. VENDOR: Xavus Solutions, LLC By: Print Name: Chris Hamilton Its President DATE: 7/23/2021 CITY: CITY OF KENT By: Print Name: Its DATE: NOTICES TO BE SENT TO: Chris Hamilton Xavus Solutions, LLC NOTICES TO BE SENT TO: City of Kent: Mike Carrington IT Director 08/05/2021 EQUIPMENT AND HARDWARE PURCHASE, SOFTWARE LICENSE, AND MAINTENANCE AGREEMENT Page 12 PO Box 55071#30713 Boston, MA 02205-5071 (508) 834-4415 (telephone) chris@myseniorcenter.com (email) Information Technology Department 220 Fourth Avenue South Kent, WA 98032 (253) 856-4600 (telephone) (253) 856-4700 (facsimile) ITA@kentwa.gov (email) ATTEST: Kent City Clerk EXHIBIT A – SCOPE OF WORK AND QUOTE (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT A SCOPE OF WORK EXHIBIT B – SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT B-1 SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES SERVICE LEVEL GUARANTEE MySeniorCenter shall use commercially reasonable efforts to maintain 99.999% uptime and to respond timely and in accordance with MySeniorCenter’s Technical Support Policies attached and incorporated as Exhibit B-2. Uptime is defined as access to the MySeniorCenter software and is not related to network issues at Customer location. If there is a significant outage that occurs as a result of something other than force majeure, a scheduled downtime, local Customer network issues, or unauthorized modifications made by Customer, then Customer is entitled to a discount on the following year’s software license and maintenance fees at a rate that corresponds to the amount of downtime (in days). In other words, 1 day of downtime would equate to a 1% discount off of the next year’s software license and maintenance fees due. REPORTING Customer will be entitled to “Credit” as explained above provided that (1) Customer provides notice to MySeniorCenter consistent with Exhibit B-2 when a downtime or error is noticed, as well as the duration of the downtime or error at the time of reporting; and (2) the downtime or error occurs or is reported during the support hours as identified in Exhibit B-2. EXCEPTIONS If at any time Customer is in default of the parties’ Agreement, then Customer is not entitled to the Credit. Customer waives the right to a Credit if the downtime or error is the result of Customer using the software in an unauthorized way such that they exceeded capacity and caused the outage/downtime/error. No Credit will be issued if the downtime or error is the result of a virus introduced by the Customer or is the result of a failure that cannot be corrected because Customer is not accessible for a 24 hour period. CUSTOMER DATA AND SECURITY In addition to the NONDISCLOSURE provisions of the parties’ Agreement training is a critical aspect of the MySeniorCenter system. MySeniorCenter encourages customers to take advantage of all training opportunities. MySeniorCenter will hold periodic web-based refresher training classes for all customers. Invitations and schedule will be visible within the login screen of the MySeniorCenter staff system. Customer also has the option of requesting individualized web-based training at any time. Customer agrees that they will participate to the fullest extent of their capability in those training offerings. EXHIBIT C – NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT B-2 EXHIBIT C – NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT C – NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION 1. Definition of Confidential Information and Exclusions. (a) "Confidential Information" means non-public information that a party to the Agreement (“Disclosing Party”) designates as being confidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. "Confidential Information" includes non-public information that City designates as being confidential or which, under the circumstances surrounding disclosure, Vendor ought to treat as confidential, including but not limited to information in tangible or intangible form relating to and/or including City data, computer programs, code, algorithms, formulas, processes, inventions, schematics and other technical, business , financial and product development plans, forecasts, strategies and proprietary or intellectual property whether or not it is owned by City and information received from others that City is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term “Vendor” also includes all its subcontractors and Affiliates. An “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, controls, are controlled by, or are under common control with a party. “Confidential Information” also includes non-public information that Vendor designates as being confidential, or which, under the circumstances surrounding disclosure ought to be treated as confidential by the City, including without limitation, information in tangible or intangible form relating to and/or including released or unreleased Vendor software or hardware products, the marketing or promotion of any Vendor product, Vendor’s business policies or practices, and information received from Vendor that the City is obligated to treat as confidential. (b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Vendor’s breach of any obligation owed City; (ii) became known to Vendor prior to City’s disclosure of such information to Vendor pursuant to the terms of this Agreement; (iii) became known to Vendor from a source other than City other than by the breach of an obligation of confidentiality owed to City; (iv) is independently developed by Vendor; or (v) is not confidential as a matter of law. 2. Obligations Regarding Confidential Information (a) Receiving Party shall: (i) Refrain from disclosing any Confidential Information of the Disclosing Party to third-parties for two (2) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c) below; (ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than prevailing standard of reasonable care in the Receiving Party’s industry, to keep confidential the Confidential Information of the Disclosing Party; (iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance of EXHIBIT C – NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Hardware Purchase, Software License, and Maintenance Agreement) Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and (iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by Disclosing Party to Receiving Party under the terms of the Agreement, except as expressly permitted by applicable law. (b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with judicial action, federal or state public disclosure requirements, state or federal regulations, or other governmental order or requirement of law, provided that Receiving Party gives the Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, at the Disclosing Party’s sole cost, effort, and expense. In the event the Disclosing Party elects to obtain a protective order or equivalent, or legally contest and avoid such disclosure, the Receiving Party shall fully cooperate with the Disclosing Party. (c) The Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third-parties sufficient to enable Receiving Party to enforce all the provisions of this Agreement. (d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of the Agreement by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. Upon discovery of an inadvertent or accidental disclosure, the Receiving Party shall promptly notify the Disclosing Party of such disclosure and shall take all reasonable steps to retrieve the disclosure and prevent further such disclosures. If the foregoing requirements are met, a Receiving Party shall not be liable for inadvertent disclosure. (e) The restrictions herein shall not apply with respect to Confidential Information which: (i) Is or becomes known to the general public without breach of this Agreement; or (ii) Is or has been lawfully disclosed to a Receiving Party by a third-party without an obligation of confidentiality; (iii) Is independently developed by a Party without access to or use of the Confidential Information; or (iv) At the end of the period of confidentiality set forth in the Agreement. (f) All tangible information, including drawings, specifications, and other information submitted hereunder, by the Receiving Party to the other shall remain the property of the Disclosing Party. The Receiving Party promptly shall return Confidential Information, including all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party, and shall cease any further use thereof, upon the first to occur of the following events: (i) written request of the Disclosing Party; (ii) termination of the parties’ Agreement; or EXHIBIT C – NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Hardware Purchase, Software License, and Maintenance Agreement) (iii) completion of the purpose for which the Confidential Information was disclosed. In lieu of the foregoing, the Receiving Party, upon mutual consent, may destroy all copies of the Confidential Information and certify to the Disclosing Party in writing that it has done so. (g) The Receiving Party shall not export, directly or indirectly, any Confidential Information or any products utilizing such data unless it first complies with any applicable laws and regulations pertaining thereto, including, but not limited to, U.S. export laws or traffic in arms regulations. 3. Remedies The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. 4. Miscellaneous (a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein. Except as expressly herein provided, no rights, licenses or relationships whatsoever are to be inferred or implied by the furnishing of Confidential Information specified above or pursuant to this Agreement. (b) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right to independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents. EXHIBIT D – INSURANCE REQUIREMENTS (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT D INSURANCE REQUIREMENTS Insurance The Vendor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Vendor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Vendor shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. The City shall be named as an insured under the Vendor’s Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 2. Cyber Liability insurance. B. Minimum Amounts of Insurance Vendor shall maintain the following insurance limits: 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. Coverage may be in the form of an underlying GL policy combined with an Umbrella/Excess policy in order to meet the limits required. 3. Cyber Liability insurance shall be written with limits no less than $1,000,000 per occurrence C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Vendor’s insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Vendor’s insurance and shall not contribute with it. 2. The Vendor’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. EXHIBIT D – INSURANCE REQUIREMENTS (to Hardware Purchase, Software License, and Maintenance Agreement) 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the Vendor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Vendor’s Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer’s liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Vendor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Vendor before commencement of the work. F. Subcontractors Vendor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Vendor. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 7/22/2021 01887 KENT BOSTON MAWILMINGTON PO BOX 696 HUB INTER'L NEW ENGLAND CL CSC Certificate@Hanover.com (800) 533-7215 (866) 828-2424 Massachusetts Bay Ins Co 22306 4 4 1,000,000 300,000 5,000 1,000,000 2,000,000 2,000,000 A 4 4 Y N ODN 9141588 10 07/01/2021 07/01/2022 1,000,000 A N N ODN 9141588 10 07/01/2021 07/01/2022 Certificate Holder is an Additional Insured on the General Liability pursuant to the terms and conditions by form 391-1006. MA 02205 WA 98032 XAVUS SOLUTIONS LLC DBA MY SENIOR CENTER PO BOX 55071 220 FOURTH AVENUE SOUTH PARKS AND RECREATION DEPARTMENT CITY OF KENT 4 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESSOWNERS LIABILITY SPECIAL BROADENING ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SUMMARY OF COVERAGES Limits Page 1. Additional Insured by Contract, Agreement or Permit Included 1 2. Additional Insured - Broad Form Vendors Included 2 3. Alienated Premises Included 3 4. Broad Form Property Damage - Borrowed Equipment, Customers Goods and Use of Elevators Included 3 5. Incidental Malpractice (Employed Nurses, EMT's and Paramedics) Included 3 6. Personal and Advertising Injury - Broad Form Included 4 7. Product Recall Expense Included 4 Product Recall Expense Each Occurrence Limit $25,000 Occurrence 5 Product Recall Expense Aggregate Limit $50,000 Aggregate 5 Product Recall Deductible $500 5 8. Unintentional Failure to Disclose Hazards Included 6 9. Unintentional Failure to Notify Included 6 This endorsement amends coverages provided under the Businessowners Coverage Form through new coverages and broader coverage grants. This coverage is subject to the provisions applicable to the Businessowners Coverage Form, except as provided below. The following changes are made to SECTION II - LIABILITY: 1. Additional Insured by Contract, Agreement or Permit The following is added to SECTION II - LIABILITY, C. Who Is An Insured: Additional Insured by Contract, Agreement or Permit a. Any person or organization with whom you agreed in a written contract, written agreement or permit to add such person or organization as an additional insured on your policy is an additional insured only with respect to liability for "bodily injury", "property damage", or "personal and advertising injury" caused, in whole or in part, by your acts or omissions, or the acts or omissions of those acting on your behalf, but only with respect to: (1) "Your work" for the additional insured(s) designated in the contract, agreement or permit; (2) Premises you own, rent, lease or occupy; or (3) Your maintenance, operation or use of equipment leased to you. b. The insurance afforded to such additional insured described above: (1) Only applies to the extent permitted by law; and (2) Will not be broader than the insurance which you are required by the contract, agreement or permit to provide for such additional insured. (3) Applies on a primary basis if that is required by the written contract, written agreement or permit. (4) Will not be broader than coverage provided to any other insured. (5) Does not apply if the "bodily injury", "property damage" or "personal and advertising injury" is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 1 of 6 c. This provision does not apply: (1) Unless the written contract or written agreement was executed or permit was issued prior to the "bodily injury", "property damage", or "personal injury and advertising injury". (2) To any person or organization included as an insured by another endorsement issued by us and made part of this Coverage Part. (3) To any lessor of equipment: (a) After the equipment lease expires; or (b) If the "bodily injury", "property damage", "personal and advertising injury" arises out of sole negligence of the lessor. (4) To any: Hanover Insurance Group.. ODN9141588 3202443 The most we will pay on behalf of the additional insured for a covered claim is the lesser of the amount of insurance: 1. Required by the contract, agreement or permit described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations e. All other insuring agreements, exclusions, and conditions of the policy apply. 2. Additional Insured - Broad Form Vendors The following is added to SECTION II - LIABILITY, C. Who Is An Insured: Additional Insured - Broad Form Vendors (a) Owners or other interests from whom a. land has been leased if the "occurrence" takes place or the offense is committed after the lease for the land expires; or (b) Managers or lessors of premises if: (i) The "occurrence" takes place or the offense is committed after you cease to be a tenant in that premises; or (ii) The "bodily injury", "property damage", "personal injury" or "advertising injury" arises out of structural alterations, new construction or demolition operations performed by or on behalf of the manager or lessor. (5) To "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" or the offense which caused the "personal and advertising injury" involved the rendering of or failure to render any professional services by or for you. d. With respect to the insurance afforded to these additional insureds, the following is added to SECTION II - LIABILITY, D. Liability and Medical Expense Limits of Insurance: Any person or organization that is a vendor with whom you agreed in a written contract or written agreement to include as an additional insured under this Coverage Part is an insured, but only with respect to liability for "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business. b. The insurance afforded to such vendor described above: (1) Only applies to the extent permitted by law; (2) Will not be broader than the insurance which you are required by the contract or agreement to provide for such vendor; (3) Will not be broader than coverage provided to any other insured; and (4) Does not apply if the "bodily injury", "property damage" or "personal and advertising injury" is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto c. With respect to insurance afforded to such vendors, the following additional exclusions apply: The insurance afforded to the vendor does not apply to: (1) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reasons of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement; (2) Any express warranty unauthorized by you; 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 2 of 6 (3) Any physical or chemical change in the product made intentionally by the vendor; (4) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instruction from the manufacturer, and then repackaged in the original container; (5) Any failure to make such inspection, 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 sale of the product; (6) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (7) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; (8) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor 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: (a) The exceptions contained within the exclusion in subparagraphs (4) or (6) above; or (b) 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 the products. (9) "Bodily injury" or "property damage" arising out of an "occurrence" that took place before you have signed the contract or agreement with the vendor. (10)To any person or organization included as an insured by another endorsement issued by us and made part of this Coverage Part. (11)Any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. The most we will pay on behalf of the vendor for a covered claim is the lesser of the amount of insurance: 1. Required by the contract or agreement described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations; This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. 3. Alienated Premises SECTION II - LIABILITY, B. Exclusions, 1. Applicable To Business Liability Coverage k. Damage to Property, paragraph (2) is replaced by the following: (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises and occurred from hazards that were known by you, or should have reasonably been known by you, at the time the property was transferred or abandoned. 4. Broad Form Property Damage - Borrowed Equipment, Customers Goods, Use of Elevators a. The following is added to SECTION II - LIABILITY, B. Exclusions, 1. Applicable To Business Liability Coverage, k. Damage to Property: Paragraph (4) does not apply to "property damage" to borrowed equipment while at a jobsite and not being used to perform operations. Paragraph (3), (4) and (6) do not apply to "property damage" to "customers goods" while on your premises nor to the use of elevators. b. For the purposes of this endorsement, the following definition is added to SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Customers goods" means property of your customer on your premises for the purpose of being: a. Worked on; or b. Used in your manufacturing process. c. The insurance afforded under this provision is excess over any other valid and collectible property insurance (including deductible) available to the insured whether primary, excess, contingent or on any other basis. 5. Incidental Malpractice - Employed Nurses, EMT's and Paramedics d. With respect to the insurance afforded to SECTION II - LIABILITY, C. Who Is An Insured, these vendors, the following is added to paragraph 2.a.(1)(d) does not apply to a nurse, SECTION II - LIABILITY, D. Liability and Medical Expense Limits of Insurance: 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 3 of 6 Hanover Insurance Group.. ODN9141588 3202443 emergency medical technician or paramedic o. Recall of Products, Work or Impaired employed by you if you are not engaged in the Property is replaced by the following: business or occupation of providing medical, o. Recall of Products, Work or Impaired paramedical, surgical, dental, x-ray or nursing Property services. 6. Personal Injury - Broad Form Damages claimed for any loss, cost or expense incurred by you or others for a. SECTION II - LIABILITY, B. Exclusions, 2. the loss of use, withdrawal, recall, Additional Exclusions Applicable only to inspection, repair, replacement, "Personal and Advertising Injury", paragraph adjustment, removal or disposal of: e. is deleted. (1) "Your product"; b. SECTION II - LIABILITY, F. Liability and "Personal (2) "Your work"; or Medical Expenses Definitions, 14. and advertising injury", paragraph b. is (3) "Impaired property"; replaced by the following: If such product, work or property is b. Malicious prosecution or abuse of withdrawn or recalled from the market or process. from use by any person or organization c. The following is added to SECTION II - because of a known or suspected defect, LIABILITY, F. Liability and Medical Expenses "Personal deficiency, inadequacy or dangerous condition in it, but this exclusion does Definitions Definition 14. and not l"producty to recall expenses" advertising injury": that you incurforhe "coveredall" of "Discrimination" (unless insurance thereof is "your product". prohibited by law) that results in injury to the However, the exception to the exclusion feelings or reputation of a natural person, "discrimination" does not apply to "product recall but only if such is: expenses resulting from: (1) Not done intentionally by or at the (4) Failure of any products to accomplish direction of: their intended purpose; (a) The insured; (5) Breach of warranties of fitness, (b) Any officer of the corporation, quality, durability or performance; director, stockholder, partner or (6) Loss of customer approval, or any member of the insured; and cost incurred to regain customer (2) Not directly or indirectly related to an approval; "employee", not to the employment, (7) Redistribution or replacement of prospective employment or termination "your product" which has been of any person or persons by an insured. recalled by like products or d. For purposes of this endorsement, the substitutes; following definition is added to SECTION II - (8) Caprice or whim of the insured; LIABILITY, F. Liability and Medical Expenses Definitions: (9) A condition likely to cause loss of 1. "Discrimination" means the unlawful which any insured knew or had reason to know at the inception of treatment of individuals based upon race, this insurance; color, ethnic origin, gender, religion, age, or sexual preference. "Discrimination" (10)Asbestos, including loss, damage or does not include the unlawful treatment clean up resulting from asbestos or of individuals based upon developmental, asbestos containing materials; or physical, cognitive, mental, sensory or (11)Recall of "your products" that have emotional impairment or any no known or suspected defect solely combination of these. because a known or suspected e. This coverage does not apply if liability defect in another of "your products" coverage for "personal and advertising has been found. injury" is excluded either by the provisions of b. The following is added to SECTION II - the Coverage Form or any endorsement LIABILITY, C. Who Is An Insured, paragraph thereto. 3.b.: 7. Product Recall Expense "Product recall expense" arising out of any a. SECTION II - LIABILITY, B. Exclusions, 1. withdrawal or recall that occurred before you Applicable To Business Liability Coverage, acquired or formed the organization. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 4 of 6 c. The following is added to SECTION II - LIABILITY, D. Liability and Medical Expenses Limits of Insurance: Product Recall Expense Limits of Insurance a. The Limits of Insurance shown in the SUMMARY OF COVERAGES of this endorsement and the rules stated below fix the most that we will pay under this Product Recall Expense Coverage regardless of the number of: (1) Insureds; (2) "Covered Recalls" initiated; or (3) Number of "your products" withdrawn. b. The Product Recall Expense Aggregate Limit is the most that we will reimburse you for the sum of all "product recall expenses" incurred for all "covered recalls" initiated during the policy period. c. The Product Recall Each Occurrence Limit is the most we will pay in connection with any one defect or deficiency. d. All "product recall expenses" in connection with substantially the same general harmful condition will be deemed to arise out of the same defect or deficiency and considered one "occurrence". e. Any amount reimbursed for "product recall expenses" in connection with any one 'occurrence" will reduce the amount of the Product Recall Expense Aggregate Limit available for reimbursement of "product recall expenses" in connection with any other defect or deficiency. f. If the Product Recall Expense Aggregate Limit has been reduced by reimbursement of "product recall expenses" to an amount that is less than the Product Recall Expense Each Occurrence Limit, the remaining Aggregate Limit is the most that will be available for reimbursement of "product recall expenses" in connection with any other defect or deficiency. g. Product Recall Deductible We will only pay for the amount of "product recall expenses" which are in excess of the $500 Product Recall Deductible. The Product Recall Deductible applies separately to each "covered recall". The limits of insurance will not be reduced by the amount of this deductible. We may, or will if required by law, pay all or any part of any deductible amount, if applicable. Upon notice of our payment of a deductible amount, you shall promptly reimburse us for the part of the deductible amount we paid. The Product Recall Expense Limits of Insurance apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for the purposes of determining the Limits of Insurance. d. The following is added to SECTION II - LIABILITY, E. Liability and Medical Expense General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: You must see to it that the following are done in the event of an actual or anticipated "covered recall" that may result in "product recall expense": (1) Give us prompt notice of any discovery or notification that "your product' must be withdrawn or recalled. Include a description of "your product' and the reason for the withdrawal or recall; (2) Cease any further release, shipment, consignment or any other method of distribution of like or similar products until it has been determined that all such products are free from defects that could be a cause of loss under this insurance. e. For the purposs of this endorsement, the following definitions are added to SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Covered recall" means a recall made necessary because you or a government body has determined that a known or suspected defect, deficiency, inadequacy, or dangerous condition in "your product" has resulted or will result in "bodily injury" or "property damage". 2. "Product recall expense(s)" means: a. Necessary and reasonable expenses for: (1) Communications, including radio or television announcements or printed advertisements including stationary, envelopes and postage; 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 5 of 6 (2) Shipping the recalled products from any purchaser, distributor or user to the place or places designated by you; (3) Remuneration paid to your regular "employees" for necessary overtime; (4) Hiring additional persons, other than your regular "employees"; (5) Expenses incurred by "employees" including transportation and accommodations; (6) Expenses to rent additional warehouse or storage space; (7) Disposal of "your product', but only to the extent that specific methods of destruction other than those employed for trash discarding or disposal are required to avoid "bodily injury" or "property damage" as a result of such disposal, you incur exclusively for the purpose of recalling "your product'; and b. Your lost profit resulting from such "covered recall". f. This Product Recall Expense Coverage does not apply: Hanover Insurance Group.. ODN9141588 3202443 (1) If the "products - completed operations hazard" is excluded from coverage under this Coverage Part including any endorsement thereto; or (2) To "product recall expense" arising out of any of "your products" that are otherwise excluded from coverage under this Coverage Part including endorsements thereto. 8. Unintentional Failure to Disclose Hazards The following is added to SECTION II - LIABILITY, E. Liability and Medical Expenses General Conditions: Representations We will not disclaim coverage under this Coverage Part if you fail to disclose all hazards existing as of the inception date of the policy provided such failure is not intentional. 9. Unintentional Failure to Notify The following is added to SECTION II - LIABILITY, E. Liability and Medical Expenses General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: Your rights afforded under this Coverage Part shall not be prejudiced if you fail to give us notice of an "occurrence", offense, claim or "suit', solely due to your reasonable and documented belief that the "bodily injury", "property damage" or "personal and advertising injury" is not covered under this Policy. ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 6 of 6 Hanover Insurance. Croup... CYBER DECLARATIONS CLAIMS -MADE WARNING THIS COVERAGE PART INCLUDES COVERAGES WRITTEN ON A CLAIMS -MADE BASIS SUBJECT TO ITS TERMS. CLAIMS -MADE COVERAGE APPLIES ONLY TO "CLAIMS' FIRST MADE AGAINST THE 'INSUREDS' DURING THE "POLICY PERIOD" OR ANY APPLICABLE EXTENDED REPORTING PERIOD. PLEASE READ THE ENTIRE POLICY CAREFULLY TO DETERMINE RIGHTS, DUTIES, COVERAGE AND COVERAGE RESTRICTIONS. "DEFENSE EXPENSES" WITHIN LIMITS AND DEDUCTIBLE THE LIMITS OF LIABILITY WILL BE REDUCED AND CAN BE COMPLETELY EXHAUSTED BY THE PAYMENT OF COVERED "DEFENSE EXPENSES'. IN THE EVENT THAT THE LIMIT OF LIABILITY IS EXHAUSTED, THE "INSURER" SHALL NOT BE LIABLE FOR "DEFENSE EXPENSES', JUDGMENTS OR SETTLEMENTS IN EXCESS OF THE APPLICABLE LIMIT. INSURING AGREEMENTS A. AND B. ARE SUBJECT TO DEDUCTIBLE AMOUNTS STATED IN THE DECLARATIONS. AMOUNTS INCURRED FOR "DEFENSE EXPENSES' ARE SUBJECT TO THE APPLICABLE DEDUCTIBLE. Policy Number Coverage is provided by: ODN-9141588-10 MASSACHUSETTS BAY INSURANCE COMPANY Item 1: NAMED INSURED: XAVUS SOLUTIONS LLC DBA MY SENIOR CENTER PO BOX 55071 BOSTON, MA 02205 Item 2. POLICY PERIOD Inception Date: 07/01/2021 Expiration Date: 07/01/2022 (12:01 AM standard time at the address shown in Item 1. ) Item 3. AGGREGATE LIMIT OF LIABILITY FOR THIS COVERAGE PART Maximum Aggregate Limit of Liability $ 11000,000 391-1802 01 15 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 2 Hanover Insurance Group.. Item 4. INSURING AGREEMENTS Prior and Pending Proceedings Date: 07/01/2021 Retroactive Date: 07/01 /2021 Insuring Agreement Limits of Liability Deductible Premium A. Privacy and Security Liability $ 1,000,000 $ 2,500 $ 523 B. Cyber Media Liability $ 1,000,000 $ 2,500 $ 523 Item 5. PREMIUM FOR COVERAGE PART $ 1,046 Item 6. FORMS OR ENDORSEMENTS ATTACHED AT ISSUE: Form Number Edition 391-1801 01/15 CYBER LIABILITY Name COVERAGE PART 391-1802 01 15 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2 of 2 Hanover Insurance Group- ODN9141588 3202443 CLAIMS -MADE WARNING THIS COVERAGE PART INCLUDES COVERAGES WRITTEN ON A CLAIMS -MADE BASIS UNDER INSURING AGREEMENTS A. AND B. SUBJECT TO ITS TERMS, CLAIMS -MADE COVERAGE APPLIES ONLY TO "CLAIMS" FIRST MADE AGAINST THE "INSUREDS" DURING THE "POLICY PERIOD" OR ANY APPLICABLE EXTENDED REPORTING PERIOD. PLEASE READ THE ENTIRE POLICY CAREFULLY TO DETERMINE RIGHTS, DUTIES, COVERAGE AND COVERAGE RESTRICTIONS "DEFENSE EXPENSES" WITHIN LIMITS AND DEDUCTIBLE THE LIMITS OF LIABILITY WILL BE REDUCED AND CAN BE COMPLETELY EXHAUSTED BY THE PAYMENT OF COVERED "DEFENSE EXPENSES". IN THE EVENT THAT THE LIMIT OF LIABILITY IS EXHAUSTED, THE "INSURER" SHALL NOT BE LIABLE FOR "DEFENSE EXPENSES", JUDGMENTS OR SETTLEMENTS IN EXCESS OF THE APPLICABLE LIMIT. INSURING AGREEMENTS A. AND B. ARE SUBJECT TO DEDUCTIBLE AMOUNTS STATED IN THE DECLARATIONS. AMOUNTS INCURRED FOR "DEFENSE EXPENSES" ARE SUBJECT TO THE Words and phrases that appear in quotation marks have special meaning. Refer to SECTION IX - DEFINITIONS. SECTION I - INSURING AGREEMENTS A. Privacy and Security Liability The "insurer" will pay on behalf of the "insured", "loss" which the "insured" is legally obligated to pay due to a "claim" first made against the "insured" during the "policy period", or Extended Reporting Period if applicable, and which arises out of a "Privacy Breach" or a "Security Breach" to which this insurance applies. B. Cyber Media Liability The "insurer" will pay on behalf of the "insured", "loss" which the "insured" is legally obligated to pay due to a "claim" first made against the "insured" during the "policy period", or Extended Reporting Period if applicable, and which arises out of a "Cyber Media Breach" to which this insurance applies. With respect to Insuring Agreements A. and B. above, this insurance applies to "Privacy Breach", "Security Breach" or "Cyber Media Breach" only if the "Privacy Breach", "Security Breach" or "Cyber Media Breach" did not occur before the Retroactive Date shown in the Cyber Declarations or after the end of the "policy period". The Retroactive Date is the specific date shown in Item 4. of the Cyber Declarations. If 'none' or no date is entered, the Retroactive Date will be the same as the policy inception date shown in Item 2. of the Cyber Declarations. SECTION II - EXCLUSIONS This insurance does not apply to any "loss" or "claim": A. Prior Notice Based upon, arising out of or in any way related to any "Security Breach", "Privacy Breach", "Cyber Media Breach", investigation, proceeding, act, event, transaction, decision, fact, circumstance or situation which has been the subject of any notice given to any other insurer, under any similar prior Policy or Coverage Part of which this Policy or Coverage Part is a direct or indirect renewal or replacement. B. Past Events Based upon, arising out of or in any way related to any "Security Breach", "Privacy Breach", "Cyber Media Breach", investigation, proceeding, act, event, result, damage, transaction, decision, fact, circumstance or situation which occurred, in whole or in part, prior: 1. To the applicable Retroactive Date set forth in Item 4. of the Cyber Declarations; or 2. To the date an entity became a "subsidiary" C. Bodily Injury or Property Damage For the physical injury to or destruction of any tangible property, including loss of use of that property and loss of use of property that is not physically damaged; or for bodily injury, mental anguish, humiliation, emotional distress, disability, sickness, disease, death, assault or battery sustained by any individual, however this Exclusion shall not apply to "loss" due to a "claim" for any mental anguish, humiliation or emotional distress resulting from a "Privacy Breach" or "Cyber Media Breach". D . Conduct Based upon, arising out of or in any way related to any dishonest or fraudulent act or omission, or a willful violation of any statute or regulation. However, this Exclusion shall not apply to "defense expenses" unless and until a final or non -appealable judgment or adjudication in any underlying proceeding or action establishes such an act or omission or violation. 391-1801 01 15 29 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 10 No conduct pertaining to any "insured individual" shall be imputed to any other "insured individual" for the purpose of determining the applicability of this exclusion. Any conduct pertaining to any past, present or future "executive" of an "insured entity" shall be imputed to such "insured entity" and its "subsidiaries". E. Contract Based upon, arising out of or in any way related to liability assumed through any oral or written contract or agreement to which an "insured" is a party; however, this Exclusion shall not apply to a "Security Breach" or "Privacy Breach". F. Pollution Based upon, arising out of or in any way related to: The actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": 1. "Loss", cost or expense arising out of any request, demand, order or statutory or regulatory requirement that any "insured" or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the effects of "pollutants"; or 2. Any regulation, direction, request or order by or on behalf of a governmental authority to test for, monitor, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the effects of "pollutants". G. Nuclear Based upon, arising out of or in any way related to the radioactive, toxic, or explosive properties of nuclear material which includes, but is not limited to, Source Material, Special Nuclear Material and Byproduct Material as those terms are defined in the Atomic Energy Act of 1954 and any amendments thereto, and any similar provisions of any federal, state or local statutory or common law. H. Intentional or Willful Complicity Based upon, arising out of or in any way related to the "insured's" intentional or willful complicity in a covered "loss" event. I . Prior & Pending Proceedings Based upon, arising out of or in any way related to any litigation, administrative or arbitration proceeding, written demand pending against an "insured", or any order, decree or judgment entered prior to or on the Prior & Pending Proceedings Date set forth in the Cyber Declarations. J. Patent Infringement & Trade Secrets Based upon, arising out of or in any way related to any infringement of a patent or trade secret. K. Intellectual Property For a "Cyber Media Breach" that is based upon, arising out of or in any way related to any: a. Distribution or sale of, or offer to distribute or sell, any good, product or service; or b. Other use of any good, product or service that infringes or violates an intellectual property law or right. L . Websites Based upon, arising out of or in any way related to: a. Controlling, creating, designing, or developing any third party's Website; b. Controlling, creating, designing, developing, determining, or providing the content or material of any third party's Website; or c. Controlling, facilitating, or providing, or failing to control, facilitate, or provide, access to the internet. M . Antitrust Based upon, arising out of or in any way related to actual or alleged price fixing, price discrimination, restraint of trade, unfair business practices, monopolistic practices or any actual or alleged violations of the Sherman Antitrust Act of 1890 or the Clayton Act of 1914, and any amendments thereto, the Robinson-Patman Act of 1938, the Federal Trade Commission Act of 1914 or any rules or regulations promulgated in connection with such statutes, or any similar provisions of any federal, state or local statutory law or common law anywhere in the world. However, this Exclusion shall not apply to "loss" for a "claim" arising out of a "Privacy Breach". N . ERISA For any actual or alleged violation of the responsibilities, obligations or duties imposed by the Employee Retirement Income Security Act of 1974, the English Pension Scheme Act 1993 or the English Pensions Act 1995, all as amended, or any similar statutory or common law anywhere in the world including rules or regulations promulgated thereunder. O. "Insured" vs. "Insured" Brought by or on behalf of a natural person who is a director, chairperson, or "executive" of any "insured entity" or who holds a similar title or position within any "insured entity". P. Software & Computer Code Based upon, arising out of or in any way related to any infringement of, violation of, or assertion of, any right to or interest in any software or its 391-1801 01 15 30 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2 of 10 source content or material; "computer" code or its source content or material or expression method; or process designed to control or facilitate any operation or other use of a "computer" or automated "system". Q. Warranty Based upon, arising out of or in any way related to the failure of goods, products, or "services" to conform with any electronic, oral, written, or other representation or warranty with respect to durability, fitness, performance, quality or use. SECTION III - DEFENSE AND SETTLEMENT OF "CLAIMS" A. The "insurer" shall have the right and duty to defend any "claim" covered by this Coverage Part even if the allegation of such "claim" is groundless, false or fraudulent. The "insurer" has no duty to defend any "claim" or pay "defense expenses" for "claims" to which this insurance does not apply. The right and duty to defend any "claim" covered under this Coverage Part shall cease when the applicable Limit of Liability for the Privacy and Security Liability or the Cyber Media Liability Insuring Agreements, or the Maximum Aggregate Limit of Liability on the Cyber Declarations has been exhausted by the payment of "loss". B. The "insured" shall provide all information in connection with any "claim" and cooperate with the "insurer" in the investigation, defense and settlement of any "claim". C. No "insured" shall settle any "claim", voluntarily make any payment, assume any obligation, or incur any "defense expense" related to a "claim" without the "insurer's" consent. D. The "insurer" may conduct any investigation it deems necessary and settle any "claim" subject to the "named insured's" written consent to settle which shall not be unreasonably withheld. If any "insured" refuses to consent to the settlement of any "claim" which the "insurer" recommends and which is acceptable to the claimant, subject to the applicable Limit of Liability or Deductible, the "insurer's" liability for all "loss" from such "claim" shall not exceed the amount the "insurer" would have contributed to the settlement including "defense expenses" incurred up to the date of such refusal. E. The "insurer" shall not seek repayment from an "insured individual" of any "defense expenses" paid by the "insurer" that are deemed uninsured pursuant to SECTION II - EXCLUSIONS Paragraph D. Conduct, unless the applicable determination standard set forth in such Exclusion has been met. Hanover Insurance Group- ODN9141588 3202443 F. If the "insurer" is prevented by law or otherwise unable to defend or investigate a "claim" brought outside the United States, the "insured" under the "insurer's" supervision may arrange for the investigation, appointment of counsel and defense of such "claim". Subject to the applicable Limit of Liability and Deductible, the "insurer" will reimburse the "insured" for any reasonable and necessary "defense expenses" for such "claim. SECTION IV - LIMIT OF LIABILITY Regardless of the number of "insureds", "claims", or claimants the "insurer's" liability under this Coverage Part is limited as follows: A. The Maximum Aggregate Limit of Liability shown in Item 3. of the Cyber Declarations is the most the "insurer" will pay under this Coverage Part during the "policy period" for the total of all "loss" arising from "claims" or "related claims" to which the insurance applies. B. Subject to the Maximum Aggregate Limit, the Limit of Liability shown in Item 4. of the Cyber Declarations for Insuring Agreement A. Privacy and Security Liability is the most the "insurer" will pay for "loss" due to "claims" or "related claims" arising out of a "Privacy Breach" or a "Security Breach" to which the insurance applies C. Subject to the Maximum Aggregate Limit, the Limit of Liability shown in Item 4. of the Cyber Declarations for Insuring Agreement B. Cyber Media Liability is the most the "insurer" will pay for "loss" due to "claims" or "related claims" arising out of a "Cyber Media Breach" to which the insurance applies. D. If a "claim" or "related claim" is covered by more than one Insuring Agreement under this Policy or Coverage Part, then the maximum amount payable under all Insuring Agreements combined shall not exceed the largest applicable Limit of Liability. E. The Limit of Liability for any Extended Reporting Period, if applicable, shall be part of and not in addition to the Maximum Aggregate Limit of Liability shown in Item 3. of the Cyber Declarations. SECTION V - DEDUCTIBLE A. The "insurer's" liability under this Coverage Part applies only to that part of covered "loss" which is in excess of the applicable Deductible stated in Item 4. of the Cyber Declarations. B. In the event that different parts of a "claim" or "related claim" are covered under more than one Insuring Agreement, only the largest applicable Deductible amount will be applied. C. "Claims" or "related claims" are subject to the Deductibles applicable to the "policy period" during which such "claims" or "related claims" are deemed to have been made. 391-1801 01 15 31 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 3 of 10 D. The "insurer" may, at its sole discretion, pay all or part of the Deductible amount on behalf of the "insured". In such an event, the "insured" agrees to repay the "insurer" any amount so paid. SECTION VI - REPORTING A. B. C. An "insured" shall provide the "insurer" with written notice as soon as practicable after an "executive", chief information officer or any person with responsibility for the management of insurance "claims", or any equivalent position within the "insured entity" becomes aware of a "claim", but in no event later than: Ninety (90) days after the effective date of expiration or termination; or 2. The expiration date of the Extended Reporting Period, if applicable. However, if the "insurer" sends written notice to the "named insured" stating that this Policy is being terminated for nonpayment of premium, an "insured" shall give the "insurer" written notice of such "claim" prior to the effective date of such termination. If during the "policy period", or during an applicable Extended Reporting Period, an "insured" becomes aware of an act or circumstances that may subsequently give rise to a "claim" and gives the "insurer" notice of such act or circumstances, then any "claim" subsequently arising from such act or circumstances shall be deemed made against the "insured" during the "policy period" in which the act or circumstances were first reported to the "insurer" provided that any such subsequent "claim" is reported to the "insurer" in accordance with paragraph A. above. An "insured" must give to the "insurer" the assistance, information and cooperation as the "insurer" may require and shall include in any notice of a "claim", act or circumstances of a potential "claim", a description of the "claim", act or circumstances, the nature of the alleged "Security Breach", "Privacy Breach" or "Cyber Media Breach", the nature and amount of alleged or potential damage, the names of actual or potential claimants, and the manner in which the "insured" first became aware of the "claim", circumstances or alleged "Privacy Breach", "Security Breach" or "Cyber Media Breach". SECTION VII - CONDITIONS A. Representations and Severability 1. No statement, fact pertaining to, or knowledge possessed by any "insured individual" shall be imputed to any other "insured individual". 2. By accepting this policy, the "named insured" agrees that: a. The statements in the Application and Cyber Declarations are accurate and complete; b. Those statements are based on representations the "named insured" made to the "insurer"; and c. The "insurer" has issued this policy in reliance upon these representations. The unintentional failure to disclose all hazards existing as of the inception date of the policy will not prejudice the "named insured's" rights under this policy. However, this provision does not affect the "insurer's" right to collect additional premium or exercise our rights of cancellation or nonrenewal in accordance with applicable insurance laws and regulations. B. Spouses, Domestic Partners, Estates and Legal Representatives Solely with respect to the Insuring Agreements A. Privacy and Security Liability and B. Cyber Media Liability, coverage shall extend to: 1. A lawful spouse or domestic partner, as defined under any applicable federal, state or local law, of an "insured individual" solely by reason of such person's status as spouse or domestic partner or such person's ownership interest in property which the claimant seeks as recovery from an "insured individual"; 2. The estate, heirs, legal representatives or assigns of an "insured individual" if such "insured individual" is deceased, legally incompetent, insolvent or bankrupt. Coverage shall not apply to "loss" or "claims" for any actual or alleged act, error, omission, misstatement, misleading statement, neglect or breach of duty by an "insured individual's" spouse, domestic partner, heir, estate, legal representative or assigns. C. Legal Proceedings Against Us 1. No individual or entity has a right under this Coverage Part to join the "insurer" as a party or otherwise bring the "insurer" into a suit asking for damages from an "insured" or to sue the "insurer" on this Coverage Part unless all of its terms have been fully complied with. 2. An individual or entity may sue the "insurer" to recover on an agreed settlement or on a final judgment against an "insured" but the "insurer" will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable Limit of Liability. An agreed settlement means a settlement and release of liability signed by the "insurer", the "insured" and the claimant or the claimant's legal representative. 391-1801 01 15 32 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 4 of 10 D. Change In Control or Exposure 1. Acquisition of the "Named Insured" If during the "policy period": a. Another individual, entity or group of individuals or entities acquires more than fifty percent (50%) of the assets of the "named insured"; or b. Another individual, entity or group of individuals or entities acquires more than fifty percent (50%) of the outstanding securities representing the right to vote for the election of directors, trustees, members of the Board of Managers or management committee members of the "named insured"; or c. The "named insured" consolidates or merges with another entity and the "named insured" is not the surviving entity; or d. The "named insured" emerges from bankruptcy on an effective date stated in the plan of reorganization; then the coverage provided under this Coverage Part shall continue until the termination or expiration of the "policy period", but only for "claims" for any actual or alleged act, error, omission, misstatement, misleading statement, neglect or breach of duty which occurs prior to the transaction date of such event. The "named insured" shall notify the "insurer" of any such event described in paragraphs 1.a. thru 1.d. above as soon as practicable but no later than sixty (60) days after the effective date of the transaction, and provide such additional information as the "insurer" requires. 2. Cessation of "Subsidiaries" If before or during the "policy period" an "insured entity" ceases to be a "subsidiary" then coverage for such "subsidiary" and its "insureds" shall continue under all Insuring Agreements until termination or expiration of this "policy period" but only for "claims" for any actual or alleged act, error, omission, misstatement, misleading statement, neglect or breach of duty that takes place prior to the date such entity ceased to be a "subsidiary". Hanover Insurance Group- ODN9141588 3202443 3. Acquisition of Another Organization If before or during the "policy period" the "insured entity" acquires the voting rights of another entity such that the acquired entity becomes a "subsidiary", then coverage for such "subsidiary" and its "insureds" shall be provided but only for "claims" for any "Privacy Breach", "Security Breach" or "Cyber Media Breach" that takes place after the date such entity became a "subsidiary". If during the "policy period" the "insured entity" acquires another entity and at the time of such acquisition the entity becomes a "subsidiary" (or would have but for its absorption into the "insured") and the total revenue of the acquired entity exceeded twenty five percent (25%) of the "insured entity" as of the beginning of the "policy period", then the "named insured" shall agree to any amendments to the terms of this Coverage Part, including, but not limited to, any additional premium the "insurer" may require. E. Subrogation If the "insured" has rights to recover all or part of any payment the "insurer" has made under this Coverage Part, those rights are transferred to the "insurer". The "insured" must do nothing after "loss" to impair them. At the request of the "insurer", the "insured" will bring suit or transfer those rights to the "insurer" and help the "insurer" enforce them. F. Other Insurance If other valid and collectible insurance (other than a Policy or Coverage Part issued specifically as excess of this Coverage Part) is available to the "insured" for "loss" covered under this Coverage Part, then the insurance provided by this Coverage Part shall be excess of such other insurance regardless of whether or not such insurance is primary, contributory, excess, contingent or on any other basis. When this insurance is excess, the "insurer" will have no duty to investigate or defend any "claim" if any other insurer has a duty to defend the "insured" against that "claim". If no other insurer defends, the "insurer" will undertake to do so, but the "insurer" will be entitled to the "insured's" rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the "loss", if any, that exceeds the sum of: 1. The total amount that all such other insurance would pay for the "loss" in the absence of this insurance; and 2. The total of all deductible and self -insured amounts under all that other insurance. 391-1801 01 15 33 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 5 of 10 G. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the "loss" remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. H . Territory Coverage applies anywhere in the world, provided that no trade or economic sanction, embargo, insurance or other laws or regulations prohibit the "insurer" from covering the "loss". However, any "claim" made must be brought and held against the "insured" in the United States of America, its territories or possessions, Puerto Rico or Canada. I. Cancellation And Non -Renewal With regard to the cancellation and non -renewal of this policy, the provisions outlined in the Commercial General Liability Coverage Part and the Common Policy Conditions or the Businessowners Coverage Part, whichever are included in the policy, shall apply and will automatically include the non -renewal or cancellation of this coverage form. You agree that no further notice regarding termination of this Coverage Form will be required. For the purposes of the Cancellation and Nonrenewal provisions, the words "you" and "your" refer to the "Named Insured" shown in the Declarations, and any other person or organization qualifying as a "Named Insured" under this policy. The words "we", "us" and "our" refer to the company providing this insurance. J. Bankruptcy Bankruptcy of an "insured" shall not relieve the "insurer" of its obligations under this Coverage Part. K. Role of Named "Insured" By accepting this Coverage Part, the "named insured" agrees that it is authorized to, and will act on behalf of all "insureds" with respect to any rights provided under this Coverage Part and each "insured" authorizes the "named insured" to act on its behalf with respect to all such matters. L. Titles and Headings The titles and headings in this Coverage Part are solely for convenience and form no part of the terms and conditions of coverage. M . Conformance to Law and Trade Sanctions Coverage under this Coverage Part does not apply to the extent trade, economic sanction, insurance or other laws or regulations prohibit the "insurer" from providing insurance. The terms of this Coverage Part which are in conflict with the statutes of the jurisdiction in which this Coverage Part is issued are amended to conform to those statutes. N. Two or More Coverage Parts, Forms, Endorsements or Policies Issued By The "Insurer" It is the "insurer's" stated intent that the various coverage parts, forms, endorsements or policies issued to the "named insured" by the "insurer" or any company affiliated with the "insurer"; do not provide any duplication or overlap of coverage for the same "claim" or "loss". If this coverage part and any other coverage part, form, endorsement or policy issued to the "named insured" by the "insurer", or any company affiliated with the "insurer", apply to the same "claim" or "loss"; the maximum Limit of Liability under all such coverage parts, forms, endorsements or policies combined shall not exceed the highest applicable Limit of Liability under any one coverage part, form, endorsement or policy. This condition does not apply to any Excess or Umbrella Policy issued by the "insurer" specifically to apply as excess insurance over this policy or Coverage Part. O. Due Diligence The "named insured" agrees to use due diligence to prevent and mitigate "loss" covered under this Coverage Part. This includes, but is not limited to, complying with reasonable and industry -accepted protocols for providing and maintaining the following: 1. Physical security for the "named insured's" premises, "computer" "systems" and hard copy files; 2. "Computer" and Internet security; 3. Periodic backups of "computer" "data"; 4. Protection, including but not limited to, encryption of "data", for transactions such as processing credit card, debit card and check payments; and 5. Disposal of files containing "private personal data", including but not limited to shredding hard copy files and destroying physical "media" used to store electronic "data". 391-1801 01 15 34 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 6 of 10 SECTION VIII - EXTENDED REPORTING PERIODS A. The "insurer" will provide one or more Extended Reporting Periods, as described below, if: 1. This Coverage Part is canceled or not renewed; or 2. The "insurer" renews or replaces this Coverage Part with insurance that: a. Has a Retroactive Date later than the date shown in Item 4. of the Cyber Declarations; or b. Does not apply to "loss" arising out of a "Privacy Breach", "Security Breach" or "Cyber Media Breach" on a claims -made basis. The "named insured" agrees that in the event of a "claim" made during an Extended Reporting Period, they will do nothing that could prejudice the position of the "insurer" or any potential or actual rights of recovery, subrogation, or contribution. B. Extended Reporting Periods do not extend the "policy period" or change the scope of the coverage provided. They apply only to "claims" because of "loss" arising out of a "Privacy Breach", "Security Breach" or "Cyber Media Breach" occurring prior to the end of the "policy period" but not before the retroactive date. Once in effect, Extended Reporting Periods may not be canceled. C. If the "insurer" cancels or does not renew this Coverage Part for any reason other than nonpayment of premium, an Automatic Extended Reporting Period will be provided without an additional premium. This period starts with the end of the "policy period" and lasts for 60 days with respect to "claims" because of "loss" arising out of a "Privacy Breach", "Security Breach" or "Cyber Media Breach" occurring prior to the end of the "policy period" but not before the retroactive date, and not previously reported to the "insurer". 1. This Automatic Extended Reporting Period does not apply to "claims" that are covered under any subsequent insurance the "named insured" purchases, or that would be covered but for exhaustion of the amount of insurance applicable to such "claims". 2. The Automatic Extended Reporting Period does not reinstate or increase the Limits of Insurance. D. If this Coverage Part is cancelled or not renewed, the "named insured" shall have the right, upon payment of an additional premium, to an Optional Extended Reporting Period. This period starts with the end of the "policy period" with respect to "claims" because of "loss" arising out of a "Privacy Breach", "Security Breach" or "Cyber Media Breach" occurring prior to the end of the "policy period" but not Hanover Insurance Group- ODN9141588 3202443 before the retroactive date, and not previously reported to the "insurer". 1. This Optional Extended Reporting Period does not apply to "claims" that are covered under any subsequent insurance the "named insured" purchases, or that would be covered but for exhaustion of the amount of insurance applicable to such "claims". 2. The Optional Extended Reporting Period does not reinstate or increase the Limits of Insurance. 3. The "named insured" must give the "insurer" a written request for the Optional Extended Reporting Period endorsement within 60 days following the date of cancellation or nonrenewal. The Optional Extended Reporting Period will not go into effect unless the "named insured" pays the additional premium promptly when due. If the cancellation or nonrenewal is for nonpayment of premium, this Optional Extended Reporting Period will not be provided unless any earned premium due is paid within 60 days after the effective date of such cancellation or expiration. 4. The available Optional Extended Reporting Periods and associated additional premiums are displayed in the table below. Optional Reporting Period Percent of Annual Premium One Year 100% Two Years 150% Three Years 200% E. In the event similar insurance is in force covering "claims" first made during Extended Reporting Period, coverage provided by this Coverage Part shall be excess over any part of any other valid and collectible insurance available to the "insured", whether primary, excess, contingent or on any other basis, whose "policy period" begins or continues after this "policy period" ends. SECTION IX - DEFINITIONS A. 'Breach Notice Law" means any federal, state, local or foreign privacy legislation, regulation and their functional equivalent that requires an entity to provide notice to affected natural persons of any actual or potential unauthorized access to their "private personal data" . B. "Claim" means: 1. A written demand received by an "insured" for monetary damages or non -monetary relief including injunctive relief; 391-1801 01 15 35 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 7 of 10 2. Any complaint or similar pleading initiating a judicial, civil, or administrative proceeding; 3. An alternative dispute or arbitration proceeding to which an "insured" is provided notice and which subjects an "insured" to a binding adjudication for monetary or non -monetary relief; against an "insured" for a "Security Breach", "Privacy Breach" or "Cyber Media Breach", including any appeal therefrom. 4. A written request first received by an "insured" to toll or waive a statute of limitations relating to a potential "claim" described in paragraphs 1. through 3. above. C. "Computer" means a device or group of hardware devices on which software, applications, script, code and "computer" programs containing "data" can be operated and viewed. D. "Cyber Attack" means the transmission of fraudulent or unauthorized "data" that is intended to and successfully modifies, alters, damages, destroys, deletes, records, transmits, or consumes information within a "system" without authorization, including "data" that is self -replicating or self -propagating, and which causes the disruption of the normal operation of a "system". E. "Cyber Content" means the electronic display, electronic transmission, or electronic dissemination of information through a "network" or through an insured's "system", including through email and an "insured entity's" internet website(s). F. "Cyber Media Breach" means the alleged or actual unintentional and unauthorized: 1. Infringement of a collective mark, service mark, service name, trademark, trade dress, domain name, commercial logo, commercial slogan, commercial symbol, commercial title, copyright, name of a product, service or entity, or title of an artistic or literary work; 2. Plagiarism or unauthorized use of protected literary or artistic work, format, character or performance; 3. Invasion or interference with the right of publicity including name, persona, voice or likeness; 4. Defamation, libel, slander, trade libel, false light or other tort directly arising from the disparagement of or harm to the reputation or character of any person or entity; resulting directly from "cyber content" of the "insured entity". G. "Data" means a representation of information, knowledge, facts, concepts or instructions which are being processed or have been processed in a "computer". H. "Defense Expenses" means the reasonable and necessary legal fees and expenses including attorney fees and expert fees incurred by the "insurer" or the "insured" (other than regular or overtime wages, salaries, fees or benefits of "insured individuals") in the investigation, defense, settlement and appeal of a "claim", including but not limited to cost of consultants and witnesses, premiums for appeal, injunction, attachment or supersedes bonds regarding such "claim". I. "Executive" means an "insured entity's" Chief Executive Officer, Chief Financial Officer, President and In -House General Counsel. J. "Insured" means the "named insured", any "subsidiary" and any "insured individual". K. "Insured Individual" means any natural person who is: 1. A duly elected past, present or future director, officer, trustee, manager, in-house general counsel, committee member of a duly constituted committee; or 2. A past, present or future employee (other than an independent contractor) including any part-time, seasonal, leased and temporary employees, and volunteers; including equivalent positions anywhere in the world, but only while such person is acting within the scope of his or her duties as such. L. "Insured Entity" means the "named insured" and any "subsidiary". M. "Insurer" means the company providing this insurance as designated in the Cyber Declarations. N. "Liquidated Damages" means a sum of money stipulated by the parties to a contract as the amount of damages to be recovered for a breach of such contract. O. "Loss" means "defense expenses" and the amount the "insured" is legally obligated to pay as a result of a "claim" including: 1. Monetary judgments, awards or settlements, pre -judgment interest and post -judgment interest and compensatory damages; 2. Punitive or exemplary damages or the multiple portion of any multiplied damage award if insurable under the law of the jurisdiction most favorable to the insurability of such damages where such jurisdiction has a substantial relationship to the "insured", the "insurer", or to the "claim" giving rise to such damages; or 3. Civil fines or penalties assessed against an "insured individual" if, and to the extent, such fines or penalties are insurable under 391-1801 01 15 36 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 8 of 10 Hanover Insurance Group- ODN9141588 3202443 the law of the jurisdiction in which such fines and penalties are assessed. U. "Potentially -Identified Person" means any "named person who is the insured's" current, However, "loss" does not include: former or prospective customer, employee, 4. The cost or expense incurred to replace, client, member, or patient and whose "private upgrade, update, improve, remediate or personal data" is lost, stolen, accidentally maintain a "system"; released or accidentally published by a "privacy breach", "security breach", "cyber media 5. Any amount deemed uninsurable by law; breach" covered under this Coverage Part. 6. Taxes; This definition is subject to the following 7. Any amount incurred by an "insured" in the provisions: defense or investigation of any action, 1. "Potentially -identified person" does not proceeding or demand that was not a include any business or organization. Only "claim" even if such amount also benefits an individual person may be a the defense of a covered "claim" or such "potentially -identified person". action, proceeding or demand that subsequently gives rise to a "claim"; 2 A "potential identified person" must have p y- a direct relationship with the "named es, commissions or 8. Return of fees, charges, insured". The following are examples of other compensation paid to an "insured"; individuals who do not meet this 9. The cost or expense incurred to perform requirement: any obligation assumed by, on behalf of, or a. If the "named insured" aggregates or with the consent of any "insured"; sells information about individuals as 10. The cost of compliance with any order for, part of the "named insured's" business, grant of or agreement to provide "potentially -identified persons" do not non -monetary relief, including injunctive include the individuals about whom the relief; or "named insured" keeps such 11. "Liquidated Damages". information. P. "Media" means electronic applications, "data" b. If the "named insured" stores, processes, transmits or transports software, scripts and programs on which records, potentially -identified persons is stored so that it can be collected, read, do not include the individuals whose retrieved or processed by a "computer". private personal data the named Media does not mean paper, or other tangible insured" is storing, processing, property, money, debt, equity, instruments, transmitting or transporting for another accounts, bonds, bills, records, abstracts, deeds entity. or manuscripts. Q. "Named Insured" means the entity designated in The above examples are not meant to all inclusive but are as a wayy to Item 1.of the Cyber Declarations. provided identify those not meeting the requirements R. "Network" means any "services" provided by or of this definition. through the facilities of any electronic or "system", V. "Privacy Breach" means: computer communication allowing the input, output, examination, visualization or 1. The "insured entity's" failure to protect transfer of "data" or programs from one "private personal data" including a "Cyber "computer" to an "insured entity's" "computer". Attack" on the "insured's entity's" "system" "Network" includes any shared "networks", or the actions of a "rogue employee" which Internet access facilities, or other similar directly results in the unauthorized facilities for such "systems", in which an disclosure of "private personal data"; "insured" participates 2. The theft or negligent loss of hardware, S. "Pollutant" means any solid, liquid, gaseous or "media", "system output", "data" or other thermal irritant or contaminant, including documents owned or controlled by, or on smoke, vapor, soot, fumes, acids, alkalis, behalf of, an "insured entity" on which chemicals and waste. Waste includes materials "private personal data" is stored or to be recycled, reconditioned or reclaimed. recorded; T. "Policy Period" means the period of time from 3. The "insured's" negligent failure to disclose the inception date shown in Item 2. of the Cyber an event referenced in 1. or 2. above in Declarations to the earlier of the expiration date violation of any "breach notice law"; or shown in Item 2. of the Cyber Declarations or 4. The "insured's" negligent violation of any the effective date of termination of this Policy or applicable federal, state, foreign or local Coverage Part. privacy legislation or regulation in connection with any "claim". 391-1801 01 15 37 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 9 of 10 W. "Private Personal Data" means a natural person's first name or first initial and last name in combination with: a. Non-public personally identifiable information, as defined in applicable federal, state, local or foreign legislation or regulations including, social security number, driver's license number or other personal identification number (including an employee identification number or student identification number); b. Financial account number (including a bank account number, retirement account number or healthcare spending account number); c. Credit, debit or payment card numbers; U 0 Z. d. Information related to employment by an "insured"; e. Individually identifiable information considered nonpublic personal information pursuant to Title V of the Gramm -Leach Bliley Act of 1999, as amended; or f. Individually identifiable information considered protected health information pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended; which is intended to be accessible only by natural persons or entities an "insured" has specifically authorized to have such access. "Private personal data" does not mean or include information that is otherwise available to the public, such as names and addresses with no correlated Social Security numbers or account numbers. "Related Claims" means all "claims" based upon, arising from or in any way related to the same facts, circumstances, situations, transactions, results, damages or events or the same series of facts, circumstances, situations, transactions, results, damage or events. "Rogue Employee" means a permanent employee of an "insured entity", other than an "executive", who has gained unauthorized access or has exceeded authorized access to a "system" or "private personal data" owned or controlled by an "insured entity" or an entity that is authorized by an "insured" to hold, process or store "private personal data" for the exclusive benefit of the "insured entity". "Security Breach" means: 1. The failure or violation of the security of the "insured entity's" "system" including the im- pairment or denial of access to the "insured entity's" "system", a "Cyber Attack" or unauthorized acts or omissions by a "rogue employee" which damages or harms the "insured entity's" "system" or the "system" of a third party for whom the "insured entity" provides "services" for a fee; 2. The theft or loss of hardware or "media" controlled by, or on behalf of, an "insured entity" on which "data" is stored; or 3. The failure to disclose an event in 1. or 2. above which violates any "breach notice law". AA. "Services" means "computer" time, "data" processing, storage functions or other uses of an "insured's" "system". BB. "Subsidiary" means: 1. Any entity in which an "insured entity" owns more than fifty percent (50%) of the outstanding securities representing the right to vote for election of or to appoint directors, trustees, managers, member of the Board of Managers or equivalent positions of such entity are owned or controlled by the "named insured", directly or through one or more "subsidiaries"; or 2. Any entity while: a. Exactly fifty percent (50%) of the securities representing the right to vote for election of or to appoint directors, trustees, managers, members of the Board of Managers, or equivalent positions of such entity are owned, or controlled by the "named insured", directly or through one or more "subsidiaries"; and b. The "named insured", pursuant to a written contract with the owners of the remaining and outstanding voting stock of such entity, solely controls the management and operation of such entity; or 3. Any foundation or charitable trust while such entity is controlled by the "named insured". Coverage shall apply to a "subsidiary" only during the time it qualifies as a "subsidiary". CC."System" means a "computer", "media" and all input, output, processing storage and communication devices controlled, supervised or accessed by the operation software that is proprietary to, or licensed to, the owner of the "computer". DD. "System Output" means a tangible substance on which "private personal data" is printed from a "System". 391-1801 01 15 38 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 10 of 10 EXHIBIT E – NONDISCRIMINATION PROVISIONS (to Hardware Purchase, Software License, and Maintenance Agreement) EXHIBIT E CITY OF KENT NON-DISCRIMINATION POLICY AND FORMS DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City’s equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City’s sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. By: _______________________ For: Xavus Solutions LLC __________________________ Title: President _________________________________ Date:7/23/2021 _________________________________ EXHIBIT E – NONDISCRIMINATION PROVISIONS (to Hardware Purchase, Software License, and Maintenance Agreement) CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City’s nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City’s equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EXHIBIT E – NONDISCRIMINATION PROVISIONS (to Hardware Purchase, Software License, and Maintenance Agreement) CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as that was entered into on the (date), between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. By: ___________________________________________ For: __________________________________________ Title: __________________________________________ Date: _________________________________________