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Attachment 3 - AGR 21.070 TruePoint 7-1-21 to 6-30-26 M E M O R A N D U M DATE:April 28, 2021 TO:Robert Schultz, Town Attorney FROM:Joel Paulson, Community Development Director SUBJECT: Sole Source Approval by the Town Attorney: TruePoint - DigEplan (LCT Software) Online Permitting Services BACKGROUND: Please approve this sole source for TruePoint in the amount of $89,474.00 for annual services for the purchase of DigEplan (LCT Software) for electronic plan review services from July 1, 2021 to June 30, 2026 which will have an option of being renewed annually thereafter. TruePoint is the only company in the US that is certified by LCT Software and the only supplier of the software DigEplan who is authorized to implement, quote, and sell for them. Staff recommends that TruePoint provide services for the Town. Recommended/Approved By: ________________________________ ______________ Joel Paulson Community Development Department Date: Approved as to Form: ________________________________ _______________ Robert Schultz, Town Attorney Date: Joel Paulson (Apr 28, 2021 11:35 PDT) Joel Paulson Apr 28, 2021 Robert Schultz (Apr 28, 2021 13:52 PDT)Robert Schultz Apr 28, 2021         ATTACHMENT 3 TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is made and entered into on July 1, 2021 by and between TOWN OF LOS GATOS, a California municipal corporation (“Town”), and TruePoint Solutions (“Consultant”), whose address is 3262 Penryn Road, Suite 100-B, Loomis, CA 95650. This Agreement is made with reference to the following facts. I. RECITALS 1.1 The Town desires to engage the Consultant to provide DigEplan support services and training for software provided by LCT Software. 1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement. 1.3 The Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement. The Consultant acknowledges that the Town has relied upon these warranties to retain the Consultant. II. AGREEMENTS 2.1 Scope of Services. The Consultant shall provide services as described in that certain Master Services Agreement sent to the Town on April 14, 2021, which is hereby incorporated by reference and attached as Exhibits A, B, and C. 2.2 Term and Time of Performance. This contract will remain in effect from July 1, 2021 to June 30, 2026. Consultant shall perform the services described in the Master Services Agreement along with Exhibits A, B, and C. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state, and local laws. The Consultant represents and warrants to the Town that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required for the Consultant to practice its profession. The Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. The Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 2.5 Information/Report Handling. All documents furnished to the Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of the Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by the Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Page 1 of 6        TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026 Page 2 of 6 Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and the Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at the Town's risk, unless the Consultant expressly consents to such use in writing. The Town further agrees that it will not appropriate any methodology or technique of the Consultant which is and has been confirmed in writing by the Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for the Consultant's professional services shall not exceed $89,474.00, inclusive of all costs. Payment shall be based upon Town approval of each task. 2.7 Billing. Billing shall be annually by invoice within thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents, or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. The Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. The Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. The Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. The Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by the Consultant or is based on allegations of the Consultant's negligent performance or wrongdoing. 2.11 Conflict of Interest. The Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. The Consultant has no business holdings or agreements with any individual        TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026 Page 3 of 6 member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, The Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. The Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in the performance of this Agreement. If after employment of a person, the Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, the Consultant shall promptly notify the Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. The Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither the Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. The Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage. ii. The Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. The Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. The Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. The Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than one million dollars ($1,000,000) which is sufficient to insure the Consultant for professional errors or omissions in the performance of the particular scope of work under this Agreement. General Liability:        TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026 Page 4 of 6 i. The Town, its officers, officials, employees, and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; and premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees, and volunteers. Any insurance or self- insurances maintained by the Town, its officers, officials, employees, or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees, or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. In addition to these policies, the Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, the Consultant shall ensure that all subcontractors employed by the Consultant provide the required Workers' Compensation insurance for their respective employees. 3.4 Indemnification. The Consultant shall save, keep, hold harmless, and indemnify and defend the Town, its officers, agent, employees, and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.        TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026 Page 5 of 6 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this Agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, and reports performed to date by the Consultant. In the event of such termination, the Town shall pay the Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: Town of Los Gatos Attn: Town Clerk 110 E. Main Street Los Gatos, CA 95030 TruePoint Solutions Attn: Keith Hobday 3262 Penryn Road, Suite 100-B Loomis, CA 95650 or personally delivered to the Consultant to such address or such other address as the Consultant designates in writing to the Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between the Town and the Consultant. No terms, conditions, understandings, or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party.        TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026 Page 6 of 6 IN WITNESS WHEREOF, the Town and the Consultant have executed this Agreement. Town of Los Gatos by: Laurel Prevetti, Town Manager Recommended by: Joel Paulson, Community Development Director Consultant, by: Keith Hobday, Partner Approved as to Form: Robert Schultz, Town Attorney Attest: Shelley Neis, MMC, CPMC Town Clerk Keith Hobday (May 5, 2021 10:20 PDT) Keith Hobday               LCT Software LLC – MSA (v1.0 approved by legal June 2019) Between TruePoint Solutions, LCT Software LLC and Town of Los Gatos, CA Master Services Agreement www.digeplan.com        Parties 1. This Master Service Agreement (this “Agreement”) is entered into as of the date of last signature (the “Effective Date”) by and between TruePoint Solutions (DigEplan reseller and service provider) located at 3262 Penryn RD suite 100-B, Loomis CA and LCT Software LLC a Florida corporation principally located at 4500, 140th Avenue North Suite, 101 Clearwater, FL 33762 (“LCT Software”), and the Town of Los Gatos, CA, 110 E. Main St., Los Gatos, CA 95030 (the Customer.) Background a) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet for the purpose of subscribers b) The customer wishes to use the Supplier's service in its business operations. c) The Supplier has agreed to provide, and the customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement. Agreed terms 1.1. Definitions - Unless otherwise defined in this Agreement, terms used herein have the same meanings as set out in the Exhibits to this Agreement (including any supplements or attachments thereto). 1.2. “Optional Services” refers to certain optional add-ons to the Subscription Service as may be offered by LCT Software from time to time. 1.3. “Professional Services” refers to LCT Software’s delivery, training, performance optimization and related services as set out in the Professional Services Terms. The Professional Services described in this Agreement are applicable to Customer if and as ordered. 1.4. “Professional Services Terms” refers to those additional Professional Services Terms and Conditions attached hereto at Exhibit D. 1.5. “Services” refers to the Subscription Service together with any Professional Services and/or Optional Services, as applicable. 1.6. “Subscription Service” refers to DigEplan’s cloud-based service designed to provide government entities with Integrated Electronic Plan Review. 1.7. “Subscription T’s & C’s” refers to the Subscription Terms and Conditions attached hereto at Exhibit C Customer agrees that its purchase of the Services hereunder is neither contingent on the delivery of nor any oral or written comments about any future functionality or features of the Subscription Service. 2. Procurement of Services Customer may purchase the Services by submitting orders in a form designated or approved by LCT Software (each, an “Order”) or, in the case of certain Professional Services, by executing Statements of Work designated or approved by LCT Software (each an “SOW”). Upon Order (or SOW) acceptance and subject to Customer’s payment of the corresponding Services Fees, LCT Software will make the Services available to Customer.        2.1. Governing Terms. The Subscription Service will be subject to this Agreement and the Subscription T’s & C’s for the Subscription Period and number of End Users as specified in each Order. Professional Services will be subject to this Agreement and the Professional Services Terms for the designated performance period as specific in the applicable Order or SOW. Any Optional Services will be subject to the Subscription Terms or such other documentation as designated by LCT Software. 2.2. Order Acceptance. No Order for Services will be deemed accepted by LCT Software unless and until LCT Software accepts such Order (or SOW) in writing. Any terms and conditions contained in any quote, invoice, purchase order or Order that are inconsistent with the terms and conditions of this Agreement will be deemed stricken, unless expressly agreed to in writing by LCT Software with explicit reference to the accepted terms and conditions. All Orders and SOWs will reference this Agreement. Upon acceptance of an Order as provided above, it will become part of this Agreement. 2.3. Adding End Users. If Customer desires to increase the number of End Users that are permitted to use the Subscription Service, a new Order must be issued for the additional End Users. LCT Software may, in its discretion, allow or require the initial Subscription Period of newly-purchased subscriptions to be adjusted to expire or renew simultaneously with Customer’s pre-existing subscription(s). 2.4. Optional Services. Purchase of Optional Services from LCT Software will be subject to any price quote LCT Software provides to Customer and the Order procedure described above. As designated by LCT Software at the time of Customer’s purchase, use of the Optional Services may be subject to Exhibit D or additional terms and conditions beyond or in lieu of those in Exhibit C. 3. Fees and Payment for Services 3.1. Fees. Customer will pay all fees for the Services per the prices quoted to Customer by LCT Software and finalized via an Order or SOW. Unless expressly set out in an Order or SOW, price increases will not apply to any Order or SOW that has already been accepted by LCT Software. Except as otherwise agreed by the parties in writing, Services Fees are quoted and payable in United States dollars, and Customer’s payment obligations are non-cancelable, and Fees paid are non-refundable. 3.2. Invoicing and Payment. TruePoint Solutions will invoice Customer in advance for the Services unless otherwise expressly agreed by the parties. 3.3. Subscription Service fees are due upon invoice and payable within forty-five (45) days of the invoice date. Subscription Service fees will be due no later than the first day of each Subscription Period to which the payment relates. If Customer orders additional End User quantities part-way through an existing Subscription Period, and the initial Subscription Period for the additional quantity is adjusted as described in Section 2.3, then the Subscription fee for such additional quantity will be pro-rated accordingly. Optional Services will be due at the same time as payment for the corresponding Subscription Service, or (if applicable) as otherwise specified in the applicable Order or governing terms. Subscription Service fees will be subject to an automatic annual increase by the percentage of the prior year’s Subscription Service fees (the “Uplift”) listed in the Order. 3.4. Professional Services fees and expenses are due upon invoice and payable within thirty (30) days of the invoice date. Professional Services fees and expenses may be subject to additional payment terms if and as designated in the applicable Order or SOW. Generally, Professional Services expenses will be billed as accrued and invoiced to Customer monthly in accordance with LCT Software’s expenses travel policy.        3.5. Billing Info & Overdue Charges. Customer is responsible for keeping LCT Software accurately and fully informed of Customer’s billing and contact information, including providing any purchase order numbers in advance of invoice issuance. If any Fees are not received from Customer by the due date, they will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. 3.6. Overdue Payments. If any amount owing by Customer under this Agreement for any of the Services is thirty (30) or more days overdue, LCT Software may, without limiting LCT Software’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement (including any Order or SOW) so that all such obligations become immediately due and payable, suspend the Subscription Service and/or stop performance of the Professional Services until such amounts are paid in full. 3.7. Taxes. LCT Software’s Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If LCT Software has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides LCT Software with a valid tax exemption certificate authorized by the appropriate taxing authority prior to invoice issuance. For clarity, LCT Software is solely responsible for taxes assessable against it based on LCT Software income, property and employees. 4. Term and Termination 4.1. Term of Agreement. Unless terminated earlier in accordance with Section 4.2, this Agreement commences on the Effective Date and will continue with respect to the Services as enumerated below: 4.1.1. Subscription Service. The Subscription T’s & C’s at Exhibit C will commence on the date listed in the first Order and continue for a period of one (1) year (the “Initial Subscription Period”). Thereafter, the Subscription Term will automatically renew for additional one-year periods (each a “Renewal Subscription Period”) unless and until either party gives written notice of non-renewal at least thirty (30) days in advance. Customer must send written notice of non-renewal to Accounts@lctsoftware.com Should Customer not provide written notice of non-renewal at least thirty (30) days in advance, then Customer is obligated to pay for the subsequent renewal in full. 4.1.2. Professional Services. If and as applicable to Customer, the Professional Services Terms at Exhibit D will commence on the date listed in the first Order or SOW and continue for the period designated in such Order or SOW. The effectiveness of the Professional Services Terms will be automatically extended to the last date specified in all SOWs and Professional Services Orders issued by LCT Software. Upon Customer request, LCT Software may, in its sole discretion, reinstate expired Professional Services Terms after a lapse in effectiveness under previously issued SOWs or Professional Services Orders. 4.2. Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. The Services will be subject to additional termination provisions if and as designated in the respective Exhibits to this Agreement.        4.3. Effect of Termination. Termination or expiration of this Agreement will not terminate any then- current Customer Subscriptions to the Subscription Service (which will continue to be governed by the terms of Exhibit C, including the termination provisions set forth therein); provided, however, that in the case of termination of this Agreement by LCT Software for Customer’s uncured breach of this Agreement, LCT Software may simultaneously terminate any such Subscriptions. Subject to the Professional Services Terms, termination of this Agreement will terminate all on-going and planned Professional Services. 5. Additional customer terms. Any terms and conditions required by Customer under applicable statute, judicial order or agency policy will be as stated in this Section 5 (the “Additional Customer Terms”). Alternatively, the Parties may set forth Additional Customer Terms at Exhibit C to this Agreement as warranted under the circumstances. Notwithstanding anything to the contrary in Section 6, the Additional Customer Terms will govern over the body of this Agreement in the event of a direct conflict of terms. In the absence of any inclusion of Additional Customer Terms in this Section 5 or at Exhibit C, the parties agree that no additional contractual obligations are intended in respect of the Services provided hereunder. 6. General 6.1 The parties acknowledge that the terms of each of the Exhibits to this Agreement (inclusive of any supplements or attachments thereto), including, but not limited to, the disclaimers, limitations of liability, and other general provisions thereof, are incorporated into and form a part of this Agreement. 6.2 In the event of a direct conflict between the body of this Agreement and the terms of the Exhibits hereto, the terms in the body of this Agreement will govern. Each party specifies its address set forth above for receipt of notices under this Agreement. This Agreement may be signed in one or more identical counterparts, each of which will be an original, but all of which together will constitute one instrument.        Subscription Fees and Term 1. Subscription Fees 2.The yearly Subscription Fees for 2021 shall amount to a total of $16,859. This is based for 16 user subscriptions. Each additional yearly subscription renewal will be subject to a 3% uplift. 3. Additional User Subscription Fees Additional User Subscriptions may be purchased by the Agency in accordance with clause 2.3 at $89.00 per User Subscription per month for users 1 to 10, $79 per User Subscription per month for users 11 to 20. If more than 20 users’ subscriptions are requested subscriptions for user 21+ can be purchased by the Agency at $69.00 per User Subscription per month. 4. Subscription Term: 1-year, form July 1st, 2021 to June 30th, 2022 - $16,859 2-year, form July 1st, 2022 to June 30th, 2023 - $17,364 3-year, form July 1st, 2023 to June 30th, 2024 - $17,855 4-year, form July 1st, 2024 to June 30th, 2025 - $18,422 5-year, form July 1st, 2025 to June 30th, 2026 - $18,974 Exhibits List: Exhibit A - Standard Support Policy Exhibit B – Service Level Commitment Exhibit C – Subscription Terms and Conditions        Signed on behalf of Town of Los Gatos, CA ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ >ĂƵƌĞůWƌĞǀĞƚƚŝ͕dŽǁŶDĂŶĂŐĞƌ ƉƉƌŽǀĞĚĂƐƚŽ&Žƌŵ ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ ZŽďĞƌƚt͘^ĐŚƵůƚnj͕dŽǁŶƚƚŽƌŶĞLJ Signed by on behalf of dƌƵĞWŽŝŶƚ ^ŽůƵƚŝŽŶƐ ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ <ĞŝƚŚ,ŽďĚĂLJ͕WĂƌƚŶĞƌ Signed by on behalf of >d^ŽĨƚǁĂƌĞ͕>> ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ :ĂƐŽŶDĂƚƚŚĞǁƐ͕K              Exhibit – A Standard Support Policy This LCT Software LLC’s SaaS Support Policy (“Support Policy”) is a policy governing the use of DigEplan’s software-as- service products (the “Service(s)”) under the terms of the services agreement (the “Agreement”) between LCT Software, LLC and its affiliates (“LCT Software”, “us” or “we”) and the purchaser of DigEplan’s Service (“Customer”). This Support Policy may be updated from time to time by LCT Software at its sole discretion. General Requirements and Hours of Operation Ticketing Support: LCT Software will provide access to a ticketing system, which will be available twenty-four (24) hours per day, seven (7) days per week. A qualified support specialist shall use commercially reasonably efforts to answer questions and resolve problems regarding the Subscription Service during normal business hours of Monday-Friday, 8:00 A.M. until 5:00 P.M PST. Telephone and E-mail Support: DigEplan’s Customer Support will be available to Customer from 8:00 A.M. until 5:00 P.M. Pacific Standard Time Monday through Friday, excluding LCT Software LLC’s observed holidays. Online Support Material: Available twenty-four (24) hours, seven (7) days a week, LCT Software will make available to Customer certain technical information in DigEplan’s online support database. Updates Updates may address security fixes, critical patches, general maintenance functionality, and documentation and shall be made available at LCT Software’s discretion. LCT Software is under no obligation to develop any future functionality or enhancements unless otherwise specified in the Agreement. If an update for the Service is made available to Customer pursuant to this Support Policy, it will automatically replace the previous version of the applicable Service. Where practical, LCT Software will schedule Updates during non-business hours and will provide Customers with advance notice of all Updates. Upgrade/Downgrade of Severity Level If, during the Support Request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the SaaS offering, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact. Third Party Product Support If any third-party software is not supplied by LCT Software, LCT Software disclaims all support obligations for such third-party software, unless expressly specified by LCT Software in Customer’s Agreement.        Exclusions The following Support Exclusions are not covered by this Support Policy: (a) Support required due to Customer’s or any End User’s or third party’s misuse of the Services; (b) Support during times outside of LCT Software regular business hours stated above; (c) Support necessitated by external factors outside of LCT Software’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (d) Support of or caused by customizations (if outside of LCT Software’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User; (e) Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within LCT Software’s direct control); (f) Support to resolve or work-around conditions which cannot be reproduced in LCT Software’s support environment and (g) Support of any software add-ons supplied together with the Service (except where specified in the Agreement). Any support services falling within these Support Exclusions may be provided by LCT Software at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by LCT Software Support Classifications Error Classification Criteria Critical Severity Issue (Priority 1) The Service is down or there is a major malfunction (deeming Service non- functional or severely affected), resulting in a business revenue loss and impacting the Service functionality for a majority of users. No reasonable workaround exists. High Severity Issue (Priority 2) High loss of Service functionality or performance, impacting the Service functionality for a high number of users (e.g. Service response is very slow, day to day operations continue, but are impacted by the issue). No reasonable workaround available or the workaround is impractical. Medium Severity Issue (Priority 3) Moderate loss of Service functionality or performance, impacting multiple users. A convenient workaround exists (e.g. non-critical feature is unavailable or requires additional user intervention). Low Severity Issue (Priority 4) Minor loss of Service functionality or feature in question. Functional Definitions: For the purposes of error classification, essential or major functions include: data capture features, SLA and alarming features, performance management features and application performance problem resolution features. Response Time: LCT Software shall use commercially reasonable efforts to respond to error reports in accordance with the table set forth below. LCT Software will use reasonable means to repair the error and keep Customer informed of progress. LCT Software makes no representations as to when a full resolution of the error may be made.        Error Classification Initial Response and Acknowledgement Updates Resolution Goal Critical 1 Business Hour Daily LCT Software will put forth our best effort to provide a workaround, fix, or estimated completion date within seventy-two (72) hours after the problem has been diagnosed and/or replicated. High 4 Business Hours Weekly LCT Software will put forth our best effort to provide a workaround or fix or estimated completion date within four (4) business days after the problem has been diagnosed and/or replicated. Medium 8 Business Hours As available LCT Software will put forth our best effort to provide a workaround or fix or estimated completion date within seven (7) business days after the problem has been diagnosed and/or replicated. Low 24 Business Hours None Resolution for the Issue may be released as a patch set or be incorporated into a future schedule release of the product.        Exhibit B SERVICE LEVEL COMMITMENT This SaaS Service Level Commitment (“SLC”) is a policy governing the use of LCT software-as-service products (individually or collectively, the “Service” or “DigEplan”) under the terms of the LCT Software Master Services Agreement (the “Agreement”) between LCT Software LLC and its affiliates (“LCT Software”, “us” or “we”) and the purchaser of LCT Software’s Subscription Service (“Customer”). Unless otherwise provided herein, this SLC is subject to the terms of the Agreement and capitalized terms will have the meaning specified in the Agreement. LCT Software reserves the right to change the terms of this SLC in accordance with the Agreement. Definitions “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Service was Unavailable. Measurement of the Monthly Uptime Percentage excludes downtime resulting directly or indirectly from any SLC Exclusion. “Service Credit” is a dollar credit, calculated as set forth below, that LCT Software may credit back to an eligible Customer account. “Unavailable” means, as applicable: (i) Customer is repeatedly unable to log into the Service; (ii) Customer experiences repeated connection request failures; (iii) Customer experiences lack of connectivity of external, public instances or sites lasting for more than ten (10) minutes; The foregoing events must be verifiable or replicable by LCT Software or its designee. Availability of Accela APIs which are used by DigEplan to connect, is expressly excluded from this SLC. Service Commitment LCT Software will use commercially reasonable efforts to make the Service available with a Monthly Uptime Percentage of at least 99.9%, in each calendar month of the Subscription Period (the “Commitment”). In the event the Service does not meet this Commitment, Customer will be eligible to receive a Service Credit as described below. Scheduled & Emergency Maintenance LCT Software will maintain certain scheduled maintenance windows during which regular, planned maintenance of the Service may be performed. LCT Software will use commercially reasonable efforts to provide Customer with no less than twenty-four (24) hours’ notice prior to Services unavailability due to planned maintenance. LCT Software’s standard maintenance window will generally fall between the hours of 12:00 AM (00:00) and 5:00 AM [05:00] on a day of our choosing, local time. In exceptional circumstances where updates may take more time than the weekly time slot, it may be necessary to run updates over w-ends. LCT Software will endeavour to provide as much notice as is practicable under the circumstances for patches, updates, fixes and other emergency maintenance activities which may be applied on an urgent basis. LCT Software will provide three (3) business days’ notice prior to any planned network, server hardware, operating environment, or database modifications of a material nature.        Service Credits Monthly Uptime Percentage Service Credit Percentage Less than 99.9% but equal to or greater than 99.0% 2% Less than 99.0% 5% LCT Software will apply any Service Credits only against future Service payments otherwise due from Customer. Service Credits will not entitle Customer to any refund or other payment from LCT Software. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Customer’s sole and exclusive remedy for any unavailability, non- performance, or other failure by LCT Software to provide the Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLC. Service Credit Requests To receive a Service Credit, Customer must submit a claim in writing to accounts@lctsoftware.com To be eligible for a Service Credit, the claim must be received by LCT Software in the calendar quarter in which the incident occurred and must include: - the words “SLC Credit Request” in the subject line; - the dates and times of each Unavailability incident that Customer is claiming; and - the quantity or scope of affected Users (as indicated by User ID, number of departments or similar metric); - Supporting evidence from the support service desk If the Monthly Uptime Percentage of such Service Credit request is confirmed by us and is less than the Service Commitment, LCT Software will issue the Service Credit to Customer within one billing cycle following the month in which Customer’s request is confirmed by LCT Software. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit. SLC Exclusions The Service Commitment does not apply to any unavailability, suspension or termination of the Service or any Service performance issues: (i) caused by factors outside of LCT Software’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (ii) that result from customizations (if outside of LCT Software’s best practice recommendations), configuration changes by or on behalf of Customer or any End User; (iii) that result from Customer’s or any End User’s or third party’s equipment, software or other technology or integrations (other than third party equipment within LCT Software’s direct control); (iv) that result from any maintenance as provided for pursuant to the above terms; or (vii) arising from our suspension or termination of Customer’s right to use the Service in accordance with the Agreement (collectively, the “SLC Exclusions”). If availability is impacted by factors other than those used in the Monthly Uptime Percentage calculation, LCT Software may issue a Service Credit with consideration to pertinent factors as assessed by LCT Software in its sole discretion.        EXHIBIT C Subscription Terms & Conditions Purchase or use of the Service (defined below) is subject to these Subscription Terms and Conditions (these “Terms”). 1. DEFINITIONS “Agreement” means these Terms and, if applicable, the written master service agreement or other written agreement between Customer and LCT Software LLC that incorporates these Terms by reference. “Communication Data” means any and all information transmitted, shared, or exchanged between Customer and any End User, or between End User and any third party (including any third-party network or website), using the Service, with respect to any transaction or other communication enabled by the Service, but excluding Security Data. “Customer” means the entity that purchases a subscription to the Service, directly from LCT Software or through an authorized reseller, distributor, or other channel partner of LCT Software. "End Users" means individuals who are authorized by Customer to use the Service and for whom Customer has purchased a subscription to the Service. End Users may include but are not limited to Customer’s employees, contractors and agents. Each End User will be associated with a single, unique email address for purposes of accessing (and being identified within) the Service. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world. “Optional Services” mean the optional add-ons to the Service that may be available for purchase either directly from LCT Software or through an authorized reseller or partner of LCT Software, as more particularly described or identified in the applicable Order. “Order” means written orders to purchase subscriptions to use the Service (or, where applicable, to purchase Optional Services). “Security Data” means any and all information provided by Customer or any End User to establish secure transmissions through use of the Service, including but not limited to personal information, information used to identify account names or numbers, routing information, usernames, passwords, access codes and prompts. “Service” or “Subscription Service” means the cloud-based network security service(s) for which Customer has obtained a subscription either directly from LCT Software or through an authorized reseller or other partner of LCT Software, as more particularly described in the applicable agreement or order under which such subscription was obtained. If and as designated in the Specifications, the Service may be inclusive of application programming interfaces (APIs) developed by LCT Software to enable interaction and integration with the Service. Unless otherwise specified herein or other applicable contractual terms, all references to “Service” will be deemed to include any and all Optional Services. “Software” means any software (including client software for End Users’ devices) that LCT Software makes available for download or otherwise provides for use with the Service. “Subscription Period(s)” means the duration of Customers and End Users active, paid access to the Service, as designated in the Order(s). “Supported Modification” means a configuration of or modification to the Service requested by Customer that can be consistently supported by LCT Software via APIs, does not require direct database changes and is capable of being tested and maintained by LCT Software.        2. AUTHORIZED USERS. Only End Users may access or use the Service under Customer’s account. Each End User may use any reasonable number of compatible devices for purposes of accessing the Service; provided that, LCT Software reserves the right to determine whether a number of devices is reasonable and, in its sole discretion, to place a corresponding cap on the number of devices. Unless expressly authorized by LCT Software, End User subscriptions cannot be shared or used by more than one individual but may be permanently reassigned to new End Users. The number of End User subscriptions purchased may be increased (under a new Order) but cannot be decreased during any Subscription Period. 3. USE OF THE SERVICE 3.1. LCT Software’s Responsibilities. LCT Software will: (i) provide to Customer support related to the Service in accordance with the LCT Software Support Terms accessible at https://zdrive.eu/gVe (which URL location and content may be updated from time to time by LCT Software) and (ii) provide the Service only in accordance with applicable laws and government regulations. 3.2. Customer’s Responsibilities. Customer will (i) be responsible for meeting LCT Software’s applicable minimum system requirements for use of the Service; (ii) be responsible for End Users’ compliance with these Terms and for any other activity (whether or not authorized by Customer) occurring under Customer’s account, (iii) be solely responsible for the accuracy, quality, integrity and legality of Communication Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Service under its account, and notify LCT Software promptly of any such unauthorized access or use, and (v) use the Service only in accordance with the applicable documentation, laws and government regulations, and any written instructions provided by LCT Software to Customer. 3.3. Prohibitions. Customer will not, and will ensure that its End Users do not, (i) make the Service available to anyone other than End Users; (ii) sell, resell, rent, lease or transfer the Service in whole or in part to any third party (including Customer affiliates) without the express permission of LCT Software and execution of designated transfer documentation; (iii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights; (iv) use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (vi) attempt to gain unauthorized access to the Service or any related systems or networks; or (vii) obtain intellectual property rights to the use of any component of the Services (inclusive of APIs). 3.4. Software. End Users may need to download and install client Software (as made available by LCT Software or other third party authorized by LCT Software) on each device through which they intend to use the Service. All use of such Software will be governed by terms of the applicable license agreement or terms of use that accompanies or is made available in connection with the Software. Customer acknowledges that each End User (or authorized Customer representative) must accept such license agreement, and have Service-compatible device(s), to download, install, and/or use the Software. Nothing in these Terms will be deemed to grant to Customer rights of any kind in the Software. 3.5. Security Data and Privacy. Customer understands that failure to protect Security Data may allow an unauthorized person or entity to access the Service. In addition, Customer acknowledges that LCT Software generally does not have access to and cannot retrieve lost Security Data. If Customer loses Security Data, Customer may no longer have access to the Service. Customer agrees that: (i) Customer (or its End User) is solely responsible for collecting, inputting and updating all Security Data; (ii) LCT Software assumes no responsibility for supervision, management or control of Customer’s and End Users’ Security Data; and (iii) LCT Software assumes no responsibility for any fraudulent or unauthorized use of the Software or any portion of the Service. To the extent that LCT Software has access to any personally identifiable information gathered from Customer or from End Users in connection with the Service, such information will be governed by the provisions of the LCT’s Privacy Policy, a copy of which is available on the LCT Software’s website at https://www.digeplan.com/privacy-policy/ (which URL location and content may be updated from time to time by LCT Software). 4. PROPRIETARY RIGHTS 4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, LCT Software reserves all rights, title and interest in and to the Service and any associated Software and documentation, including all        related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein. 4.2. Restrictions. In addition to the other prohibitions set forth in these Terms, Customer will not and will ensure that its agents do not (i) create derivate works based on the Service, (ii) copy, frame or mirror any part or content of the Service, other than copying or framing on Customer’s own intranets or otherwise for Customer’s internal business purposes in accordance with LCT Software’s applicable documentation, (iii) reverse engineer the Service, or (iv) access the Service (inclusive of any APIs) in order to build or patent a competitive product or service or to copy any features, functions or graphics of the Service. 4.3. Communication Data Ownership. Customer reserves all its rights, title and interest in and to the Communication Data. No rights are granted to LCT Software hereunder with respect to the Communication Data, except that LCT Software may (i) store, copy, process, and transmit such Communication Data for purposes of providing the Service to Customer and (ii) otherwise utilize Communication Data if and as permitted by the LCT Software’s Privacy Policy. 4.4. Customer Suggestions. Customer grants LCT Software a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service (or LCT’s other software or services) any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or End Users relating to the operation or features of the Service. 5. CONFIDENTIALITY 5.1. Definition. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 5.2. Protection. Except as otherwise permitted in writing by the Disclosing Party and subject to the other terms of this Agreement (including LCT Software’s Privacy Policy), (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who are legally bound to protect such Confidential Information consistent with these Terms. 5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest, limit, or protect the disclosure. 6. WARRANTIES AND DISCLAIMERS 6.1. Specifications. Subject to the limitations set forth below, LCT Software warrants that the Service will operate in all material respects in accordance with the Specifications. As Customer’s sole and exclusive remedy and LCT Software’s entire liability for any breach of the foregoing warranty, LCT Software will use commercially reasonable efforts to modify the Service so that it conforms to foregoing warranty. 6.2. Service Level Commitment. During the Subscription Period, LCT Software further warrants that the Service will meet the performance level specified in the Service Level Commitment, as made available by LCT Software at https://zdrive.eu/gVe (which URL location and content may be updated from time to time by LCT Software). The Service Level Commitment sets forth Customer’s sole and exclusive remedy for LCT Software’s failure to achieve the stated Service performance level.        6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LCT SOFTWARE DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LCT SOFTWARE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LCT Software will not be responsible to the extent failure of the Service to operate as warranted is caused by or results from: (i) any modification to the Service other than a Supported Modification; (ii) combination, operation or use of the Service with Customer’s or a third party's applications, software or systems; (iii) abuse, willful misconduct or negligence by anyone other than LCT Software or LCT Software’s designee; (iv) use of the Service other than in accordance with the terms of this Agreement and/or the applicable Specifications and LCT Software documentation or (v) any of the SLC Exclusions (as defined in the Service Level Commitment). 7. MUTUAL INDEMNIFICATION 7.1. Indemnification by Customer. Customer will defend (or settle), indemnify and hold harmless LCT Software, its officers, directors, employees and subcontractors, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or any End User’s use of the Service (other than any claim for which LCT Software is responsible under Section 7.2); or (ii) Customer or any End User has used the Service in a manner that violates these Terms or applicable law. Customer’s obligations under this Section 7.1 are contingent upon: (a) LCT Software providing Customer with prompt written notice of such claim; (b) LCT Software providing reasonable cooperation to Customer, at Customer’s expense, in defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim. 7.2. Indemnification by LCT Software. Party will defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Service, as furnished by LCT Software hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. LCT Software’s obligations under this Section 7.2 are contingent upon: (a) Customer providing LCT Software with prompt written notice of such claim; (b) Customer providing reasonable cooperation to LCT Software, at LCT Software’s expense, in the defense and settlement of such claim; and (c) LCT Software having sole authority to defend or settle such claim. THIS SECTION 7.2 STATES THE ENTIRE OBLIGATION OF LCT SOFTWARE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. LCT Software will have no liability under this Section 7.2 to the extent that any third-party claims described herein are based on any combination of the Service with products, services, methods, or other elements not furnished by LCT Software, or any use of the Service in a manner that violates this Agreement or the instructions given to Customer by LCT Software. 7.3. Mitigation Measures. In the event that (i) any claim or potential claim covered by Section 7.2 arises or (ii) LCT Software’s right to provide the Service is enjoined or in LCT Software’s reasonable opinion is likely to be enjoined, LCT Software may, in its discretion, seek to mitigate the impact of such claim or injunction by obtaining the right to continue providing the Service, by replacing or modifying the Service to make it non- infringing, and/or by suspending or terminating Customer’s use of the Service with reasonable notice to Customer. In the case of a suspension or termination pursuant to this Section 7.3, LCT Software will refund to Customer a portion of fees prepaid by Customer for the then-current Subscription period, prorated to the portion of that Subscription period that is affected by the suspension or termination). 8. LIMITATIONS OF LIABILITY. EXCEPT THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 7.1 AND 7.2, IN NO EVENT WILL PARTY’S LIABILITY TO OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT. 8.1. Exclusion of Damages. NEITHER PARTY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR        CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS APPLY WHETHER OR NOT PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTHING IN THESE TERMS EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE. 8.2. Security and Other Risks. Customer acknowledges that, notwithstanding security features of the Service, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure. Subject only to its limited warranty obligations set forth in Section 6, LCT Software will have no liability for any security breach caused by any such persons, entities, or technologies. Customer further acknowledges that the Service is not guaranteed to operate without interruptions, failures, or errors. If Customer or End Users use the Service in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and will indemnify LCT Software and hold it harmless against those risks. 8.3. Basis of Bargain. THE LIMITATIONS OF LIABLITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 8 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LCT SOFTWARE AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW. 9. SUBSCRIPTION PERIOD AND TERMINATION 9.1. Term of End User Subscriptions. End User Subscriptions purchased by Customer commence on the start date specified in the applicable Order and, unless terminated earlier in accordance with these Terms, continue for the term specified therein (the “Subscription Period”). A Subscription Period and/or pricing there on may be subject to prorating where LCT Software deems it appropriate to cause newly purchased Subscriptions to expire or renew simultaneously with Customer’s pre- existing Subscription(s). Except as otherwise specified in the applicable Order, all Subscriptions will automatically renew for additional Subscription Periods equal to the expiring Subscription Period or one year (whichever is shorter), unless either party gives the other at least thirty (30) days’ notice of non-renewal before the end of the relevant Subscription Period. The per-unit pricing during any such renewal Subscription Period may be subject to annual pricing increase as designated by LCT Software and notified to Customer. Pricing increases will be effective upon renewal of the Subscription Period and annually thereafter, unless otherwise agreed to by the parties. If either party provides notice of non-renewal as set forth above, Customer’s right to use the Service will terminate at the end of the relevant Subscription Period. 9.2. Termination or Suspension for Cause. A party may terminate any Subscription for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty (30) day period. In addition, LCT Software may, at is sole option, suspend or terminate Customer’s or any End User’s access to the Service, or any portion thereof, immediately if LCT Software, in its sole discretion: (i) if suspects that any person other than Customer or an End User is using or attempting to use Security Data, (ii) suspects that Customer or an End User is using the Service in a way that violates these Terms and could expose LCT Software or any other entity to harm or legal liability, or (iii) is or reasonably believes it is required to do so by law or court order. 9.3. Effect of Termination. Within thirty (30) calendar days following the end of Customer’s final Subscription Period, Customer may request in writing LCT Software to provide a copy of Customer’s data and associated documents in a database dump file format. LCT Software will comply in a timely manner with such request; provided that, Customer (a) pays all costs of and associated with such copying, as calculated at LCT Software then-current time-and-materials rates; and (b) pays any and all unpaid amounts due to LCT Software.        9.4. Surviving Provisions. Sections 4 (Proprietary Rights), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 9.3 (Effect of Termination), 9.4 (Surviving Provisions) and 10 (General Provisions) will survive any termination or expiration of this Agreement. 10. GENERAL 10.1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) sending by confirmed email if sent during the recipient’s normal business hours (or, if not, then on the next business day). Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the Service (or such other address as the recipient may thereafter specify by notice given in accordance with this Section 10.1). 10.2. Governing Law and Jurisdiction. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of law’s provisions. The exclusive jurisdiction and venue of any action related to the Service or this Agreement will be the state and federal courts located in California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. 10.3. Compliance with Laws. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Customer will not permit End Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction. 10.4. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties. 10.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. 10.7. Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of LCT Software. Any attempted assignment or transfer, without such consent, will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. 10.8. Publicity. Subject to the provisions of Section 5, each party will have the right to publicly announce the existence of the business relationship between parties. In addition, during the Subscription Period of Customer’s Service use, LCT Software may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on LCT Software’s websites and marketing materials to identify Customer as LCT Software’s customer, and for providing the Service to Customer; provided that, LCT Software will use commercially reasonable efforts to adhere to any usage guidelines furnished by Customer with respect to Customer’s Marks. 10.9. Force Majeure. The Parties will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of the Party. 10.10. Entire Agreement. These Terms, including any attachments hereto as mutually agreed upon by the Parties, constitute the entire agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by a duly authorized representative of each party against whom the modification,        amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s order documentation will be incorporated into or form any part of these Terms, and all such terms or conditions will be null. 11.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this PSA will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 11.6. Severability. If any provision of this PSA is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this PSA will remain in effect. 11.7. Assignment. Customer may not assign or transfer this PSA or any SOW or Order hereunder, whether by operation of law or otherwise, without the prior written consent of LCT Software. Any attempted assignment or transfer, without such consent, will be void. Subject to the foregoing, this PSA will bind and inure to the benefit of the parties, their respective successors and permitted assigns. 11.8. Publicity. Subject to the provisions of Section 9, each party will have the right to publicly announce the existence of the business relationship between parties. In addition, during the Subscription Period of Customer’s use of the Service, LCT Software may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on LCT Software’s website and marketing materials to identify Customer as LCT Software’s customer, and for providing the Service to Customer; provided that, LCT Software will use commercially reasonable efforts to adhere to any usage guidelines furnished by Customer with respect to Customer’s Marks. 11.9. Force Majeure. LCT Software will not be liable for any delay or failure to perform under this PSA to the extent such delay or failure results from circumstances or causes beyond the reasonable control of LCT Software. 11.10. Entire Agreement. The parties acknowledge that they have had previous discussions related to the performance by LCT Software of Professional Services for Customer and the possible strategies which may be used by LCT Software to implement the Subscription Service to achieve the requirements identified by Customer. This PSA, together with mutually agreed-upon attachments that are incorporated by reference herein, constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s Order, any SOW or other order documentation will be incorporated into or form any part of this PSA, and all such terms or conditions will be null. Under no circumstances will the terms, conditions or provisions of any RFP, purchase order, invoice or other administrative document issued by Customer in connection to this PSA be deemed to modify, alter or expand this PSA, regardless of any failure of LCT Software to object to such terms, provisions, or conditions. No other act, document, usage, custom or waiver will be deemed to amend or modify this PSA unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any inconsistency or conflict between the terms of this PSA, and SOW, the terms of the SOW will control with regards to the project described.        TOWN OF LOS GATOS PLANNING COMMISSION REPORT MEETING DATE: 05/04/2021 ITEM NO: ? DATE: April 27, 2021 TO: Mayor and Town Council FROM: Laurel Prevetti, Town Manager SUBJECT: Authorize the Town Manager to Execute a Five-year Agreement for Consultant Services with TruePoint Solutions DigEplan (LCT Software) for Electronic Plan Review Services in an Amount Not to Exceed $89,474 Over the Life of the Agreement. Amount Annually Will Vary with a 3 percent increase each year with the first year not to exceed $16, 859. RECOMMENDATION: Authorize the Town Manager to Execute a Five-year Agreement for Consultant Services with TruePoint Solutions DigEplan (LCT Software) for Electronic Plan Review Services in an Amount Not to Exceed $89,474 Over the Life of the Agreement. Amount Annually Will Vary with a 3 percent increase each year with the first year not to exceed $16, 859. BACKGROUND: The Town has been working with TruePoint Solutions since 2011 and TruePoint Solutions DigEplan (LCT Software) since May 1, 2020 to provide electronic plan review services for the Community Development Department during the Covid-19 pandemic. DISCUSSION: The original 2020 Agreement was for a 1-year term at $6,480, totaling $6,480. Subsequent amendments increased the number of licenses and the rate to the current annual rate of $16,859. The proposed increase annually is 3 percent from the current contract rate over the five-year term of the agreement.         PAGE 2 OF 2 SUBJECT: TruePoint Solutions DigEplan (LCT Software) DATE: May 4, 2021 PREPARED BY: JOEL PAULSON, Director of Community Development Reviewed by: Community Development Director, Town Attorney, Assistant Town Manager, Town Manager 110 E. Main Street Los Gatos, CA 95030 භϰϬϲ-354-6832 www.losgatosca.gov DISCUSSION (continued): TruePoint Solutions DigEplan (LCT Software) is sole source vendor. TruePoint is the only company in the US that is certified by LCT Software and the only supplier of the software DigEplan who is authorized to implement, quote, and sell for them. CONCLUSION: TruePoint’s consulting services assist the Town in serving the land use needs of the community. Based on TruePoint’s extensive knowledge of the Town’s Accela implementation, excellent support history with the Town, and competitive pricing, staff recommends that the Town Council authorize the Town Manager to enter into an Agreement for the software licensing and related services not to exceed $89,474 for a five-year term. COORDINATION: This report was coordinated with the Community Development Department, Information Technology Department, Town Manager’s Office, Finance Department, and Town Attorney. FISCAL IMPACT: The funds are available in the Information Technology budget. ENVIRONMENTAL ASSESSMENT: This is not a project defined under CEQA, and no further action is required. ATTACHMENTS: 1. Sole Source 2. Draft Agreement for Consultant Services 3. Master Services Agreement         ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTR INSD WVD PRODUCER CONTACTNAME:FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A(Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED INACCORDANCE WITH THE POLICY PROVISIONS. 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. 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 POLICIESBELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZEDREPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement onthis certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 4/16/2021 (530) 823-3733 (530) 823-3640 11000 True Point Solutions LLC3262 Penryn Rd Ste 100B Loomis, CA 95650 A 1,000,000 XX57-SBA-AX4262 2/1/2021 2/1/2022 1,000,000 Hired & NonOwned Aut 10,000 1,000,000 2,000,000 2,000,000 THIRD PARTY CYB 500,000 1,000,000A 57-SBA-AX4262 2/1/2021 2/1/2022 2,000,000A 57-SBA-AX4262 2/1/2021 2/1/2022 2,000,000 10,000 A Claims Made E & O 57-SBA-AX4262 2/1/2021 2/1/2022 Aggregate 2,000,000 RE: Work performed by the named insured on behalf of the certificate holder Town of Los Gatos, its officers, officials, employees, agents and volunteers are included as additional insured in regard to general liability per SS 00 08 04 05, attached with primary wording and waiver of subrogation. Town of Los Gatos 110 E. Main Street Los Gatos, CA 95030 TRUEPOI-01 ASPANNINGER George Petersen Insurance Agency, Inc.PO Box 6675Auburn, CA 95604 info@gpins.com Sentinel Insurance Company Ltd X X X XX XX X X X ,++         Form SS 00 08 04 05 QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM Beginning on Page A. COVERAGES 1 Business Liability 1 Medical Expenses 2 Coverage Extension - Supplementary Payments 2 B. EXCLUSIONS 3 C. WHO IS AN INSURED 10 D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 14 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15 1.Bankruptcy 15 2.Duties In The Event Of Occurrence, Offense, Claim Or Suit 15 3.Financial Responsibility Laws 16 4.Legal Action Against Us 16 5.Separation Of Insureds 16 6.Representations 16 7.Other Insurance 16 8.Transfer Of Rights Of Recovery Against Others To Us 17 F. OPTIONAL ADDITIONAL INSURED COVERAGES 18 Additional Insureds 18 G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 20         Form SS 00 08 04 05 Page 1 of 24 © 2005, The Hartford BUSINESS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. - Liability And Medical Expenses Definitions. A. COVERAGES 1. BUSINESS LIABILITY COVERAGE (BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY) Insuring Agreement a.We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage" or "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" or offense and settle any claim or "suit" that may result. But: (1)The amount we will pay for damages is limited as described in Section D.- Liability And Medical Expenses Limits Of Insurance; and (2)Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments, settlements or medical expenses to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Coverage Extension - Supplementary Payments. b.This insurance applies: (1)To "bodily injury" and "property damage" only if: (a)The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (b)The "bodily injury" or "property damage" occurs during the policy period; and (c)Prior to the policy period, no insured listed under Paragraph 1.of Section C.–WhoIsAnInsuredandno "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period. (2)To "personal and advertising injury" caused by an offense arising out of your business, but only if the offense was committed in the "coverage territory" during the policy period. c."Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1.of Section C.– Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1)Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer; Policy Number: 57-SBA-AX4262         BUSINESS LIABILITY COVERAGE FORM Page 2 of 24 Form SS 00 08 04 05 (2)Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or (3)Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d.Damages because of "bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the "bodily injury". e. Incidental Medical Malpractice (1)"Bodily injury" arising out of the rendering of or failure to render professional health care services as a physician, dentist, nurse, emergency medical technician or paramedic shall be deemed to be caused by an "occurrence", but only if: (a)The physician, dentist, nurse, emergency medical technician or paramedic is employed by you to provide such services; and (b)You are not engaged in the business or occupation of providing such services. (2)For the purpose of determining the limits of insurance for incidental medical malpractice, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence". 2. MEDICAL EXPENSES Insuring Agreement a.We will pay medical expenses as described below for "bodily injury" caused by an accident: (1)On premises you own or rent; (2)On ways next to premises you own or rent; or (3)Because of your operations; provided that: (1)The accident takes place in the "coverage territory" and during the policy period; (2)The expenses are incurred and reported to us within three years of the date of the accident; and (3)The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. b.We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance. We will pay reasonable expenses for: (1)First aid administered at the time of an accident; (2)Necessary medical, surgical, x-ray and dental services, including prosthetic devices; and (3)Necessary ambulance, hospital, professional nursing and funeral services. 3. COVERAGE EXTENSION - SUPPLEMENTARY PAYMENTS a.We will pay, with respect to any claim or "suit" we investigate or settle, or any "suit" against an insured we defend: (1)All expenses we incur. (2)Up to $1,000 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish these bonds. (3)The cost of appeal bonds or bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. (4)All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. (5)All costs taxed against the insured in the "suit". (6)Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. (7)All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. Any amounts paid under (1)through (7) above will not reduce the limits of insurance.         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 3 of 24 b.If we defend an insured against a "suit" and an indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee if all of the following conditions are met: (1)The "suit" against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; (2)This insurance applies to such liability assumed by the insured; (3)The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same "insured contract"; (4)The allegations in the "suit" and the information we know about the "occurrence" are such that no conflict appears to exist between the interests of the insured and the interest of the indemnitee; (5)The indemnitee and the insured ask us to conduct and control the defense of that indemnitee against such "suit" and agree that we can assign the same counsel to defend the insured and the indemnitee; and (6)The indemnitee: (a)Agrees in writing to: (i)Cooperate with us in the investigation, settlement or defense of the "suit"; (ii)Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the "suit"; (iii)Notify any other insurer whose coverage is available to the indemnitee; and (iv)Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (b)Provides us with written authorization to: (i)Obtain records and other information related to the "suit"; and (ii)Conduct and control the defense of the indemnitee in such "suit". So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 1.b.(b)of Section B.– Exclusions, such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the Limits of Insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: (1)We have used up the applicable limit of insurance in the payment of judgments or settlements; or (2)The conditions set forth above, or the terms of the agreement described in Paragraph (6)above, are no longer met. B. EXCLUSIONS 1. Applicable To Business Liability Coverage This insurance does not apply to: a. Expected Or Intended Injury (1)"Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property; or (2)"Personal and advertising injury" arising out of an offense committed by, at the direction of or with the consent or acquiescence of the insured with the expectation of inflicting "personal and advertising injury". b. Contractual Liability (1)"Bodily injury" or "property damage"; or (2)"Personal and advertising injury" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages because of: (a)"Bodily injury", "property damage" or "personal and advertising injury" that the insured would have in the absence of the contract or agreement; or         BUSINESS LIABILITY COVERAGE FORM Page 4 of 24 Form SS 00 08 04 05 (b)"Bodily injury" or "property damage" assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purpose of liability assumed in an "insured contract", reasonable attorneys' fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury" or "property damage" provided: (i)Liability to such party for, or for the cost of, that party’s defense has also been assumed in the same "insured contract", and (ii)Such attorneys' fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. c. Liquor Liability "Bodily injury" or "property damage" for which any insured may be held liable by reason of: (1)Causing or contributing to the intoxication of any person; (2)The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3)Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law. e. Employer’s Liability "Bodily injury" to: (1)An "employee" of the insured arising out of and in the course of: (a)Employment by the insured; or (b)Performing duties related to the conduct of the insured’s business, or (2)The spouse, child, parent, brother or sister of that "employee" as a consequence of (1)above. This exclusion applies: (1)Whether the insured may be liable as an employer or in any other capacity; and (2)To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1)"Bodily injury", "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a)At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to any insured. However, this subparagraph does not apply to: (i)"Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or equipment that is used to heat water for personal use, by the building's occupants or their guests; (ii)"Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, site or location has been added to your policy as an additional insured with respect to your ongoing operations performed for that additional insured at that premises, site or location and such premises, site or location is not and never was owned or occupied by, or rented or loaned to, any insured, other than that additional insured; or         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 5 of 24 (iii)"Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; (b)At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c)Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for: (i)Any insured; or (ii)Any person or organization for whom you may be legally responsible; (d)At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the "pollutants" are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor. However, this subparagraph does not apply to: (i)"Bodily injury" or "property damage" arising out of the escape of fuels, lubricants or other operating fluids which are needed to perform the normal electrical, hydraulic or mechanical functions necessary for the operation of "mobile equipment" or its parts, if such fuels, lubricants or other operating fluids escape from a vehicle part designed to hold, store or receive them. This exception does not apply if the "bodily injury" or "property damage" arises out of the intentional discharge, dispersal or release of the fuels, lubricants or other operating fluids, or if such fuels, lubricants or other operating fluids are brought on or to the premises, site or location with theintentthattheybe discharged, dispersed or released as part of the operations being performed by such insured, contractor or subcontractor; (ii)"Bodily injury" or "property damage" sustained within a building and caused by the release of gases, fumes or vapors from materials brought into that building in connection with operations being performed by you or on your behalf by a contractor or subcontractor; or (iii)"Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; or (e)At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants". (2)Any loss, cost or expense arising out of any: (a)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 (b)Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, "pollutants". However, this paragraph does not apply to liability for damages because of "property damage" that the insured would have in the absence of such request, demand, order or statutory or regulatory requirement, or such claim or "suit" by or on behalf of a governmental authority.         BUSINESS LIABILITY COVERAGE FORM Page 6 of 24 Form SS 00 08 04 05 g. Aircraft, Auto Or Watercraft "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading". 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" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured. This exclusion does not apply to: (1)A watercraft while ashore on premises you own or rent; (2)A watercraft you do not own that is: (a)Less than 51 feet long; and (b)Not being used to carry persons for a charge; (3)Parking an "auto" on, or on the ways next to, premises you own or rent, provided the "auto" is not owned by or rented or loaned to you or the insured; (4)Liability assumed under any "insured contract" for the ownership, maintenance or use of aircraft or watercraft; (5)"Bodily injury" or "property damage" arising out of the operation of any of the equipment listed in Paragraph f.(2) or f.(3)of the definition of "mobile equipment"; or (6)An aircraft that is not owned by any insured and is hired, chartered or loaned with a paid crew. However, this exception does not apply if the insured has any other insurance for such "bodily injury" or "property damage", whether the other insurance is primary, excess, contingent or on any other basis. h. Mobile Equipment "Bodily injury" or "property damage" arising out of: (1)The transportation of "mobile equipment" by an "auto" owned or operated by or rented or loaned to any insured; or (2)The use of "mobile equipment" in, or while in practice or preparation for, a prearranged racing, speed or demolition contest or in any stunting activity. i. War "Bodily injury", "property damage" or "personal and advertising injury", however caused, arising, directly or indirectly, out of: (1)War, including undeclared or civil war; (2)Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or (3)Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. j. Professional Services "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or failure to render any professional service. This includes but is not limited to: (1)Legal, accounting or advertising services; (2)Preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; (3)Supervisory, inspection, architectural or engineering activities; (4)Medical, surgical, dental, x-ray or nursing services treatment, advice or instruction; (5)Any health or therapeutic service treatment, advice or instruction; (6)Any service, treatment, advice or instruction for the purpose of appearance or skin enhancement, hair removal or replacement or personal grooming; (7)Optical or hearing aid services including the prescribing, preparation, fitting, demonstration or distribution of ophthalmic lenses and similar products or hearing aid devices;         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 7 of 24 (8)Optometry or optometric services including but not limited to examination of the eyes and the prescribing, preparation, fitting,demonstration or distribution of ophthalmic lenses and similar products; (9)Any: (a)Body piercing (not including ear piercing); (b)Tattooing, including but not limited to the insertion of pigments into or under the skin; and (c)Similar services; (10)Services in the practice of pharmacy; and (11)Computer consulting, design or programming services, including web site design. Paragraphs (4)and (5)of this exclusion do not apply to the Incidental Medical Malpractice coverage afforded under Paragraph 1.e.in Section A.- Coverages. k. Damage To Property "Property damage" to: (1)Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2)Premises you sell, give away or abandon, if the "property damage" arises outofanypartofthosepremises; (3)Property loaned to you; (4)Personal property in the care, custody or control of the insured; (5)That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6)That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Paragraphs (1),(3)and (4)of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate Limit of Insurance applies to Damage To Premises Rented To You as described in Section D.- Limits Of Insurance. Paragraph (2)of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3)and (4)of this exclusion do not apply to the use of elevators. Paragraphs (3),(4),(5)and (6)of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3)and (4)of this exclusion do not apply to "property damage" to borrowed equipment while not being used to perform operations at a job site. Paragraph (6)of this exclusion does not apply to "property damage" included in the "products-completed operations hazard". l. Damage To Your Product "Property damage" to "your product" arising out of it or any part of it. m. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products-completed operations hazard". This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. n. Damage To Impaired Property Or Property Not Physically Injured "Property damage" to "impaired property" or property that has not been physically injured, arising out of: (1)A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work"; or (2)A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use.         BUSINESS LIABILITY COVERAGE FORM Page 8 of 24 Form SS 00 08 04 05 o. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1)"Your product"; (2)"Your work"; or (3)"Impaired property"; if such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it. p. Personal And Advertising Injury "Personal and advertising injury": (1)Arising out of oral, written or electronic publication of material, if done by or at the direction of the insured with knowledge of its falsity; (2)Arising out of oral, written or electronic publication of material whose first publication took place before the beginning of the policy period; (3)Arising out of a criminal act committed by or at the direction of the insured; (4)Arising out of any breach of contract, except an implied contract to use another’s "advertising idea" in your "advertisement"; (5)Arising out of the failure of goods, products or services to conform with any statement of quality or performance made in your "advertisement"; (6)Arising out of the wrong description of the price of goods, products or services; (7)Arising out of any violation of any intellectual property rights such as copyright, patent, trademark, trade name, trade secret, service mark or other designation of origin or authenticity. However, this exclusion does not apply to infringement, in your "advertisement", of (a)Copyright; (b)Slogan, unless the slogan is also a trademark, trade name, service mark or other designation of origin or authenticity; or (c)Title of any literary or artistic work; (8)Arising out of an offense committed by an insured whose business is: (a)Advertising, broadcasting, publishing or telecasting; (b)Designing or determining content of web sites for others; or (c)An Internet search, access, content or service provider. However, this exclusion does not apply to Paragraphs a.,b.and c. under the definition of "personal and advertising injury" in Section G.– Liability And Medical Expenses Definitions. For the purposes of this exclusion, placing an "advertisement" for or linking to others on your web site, by itself, is not considered the business of advertising, broadcasting, publishing or telecasting; (9)Arising out of an electronic chat room or bulletin board the insured hosts, owns, or over which the insured exercises control; (10)Arising out of the unauthorized use of another's name or product in your e-mail address, domain name or metatags, or any other similar tactics to mislead another's potential customers; (11)Arising out of the violation of a person's right of privacy created by any state or federal act. However, this exclusion does not apply to liability for damages that the insured would have in the absence of such state or federal act; (12)Arising out of: (a)An "advertisement" for others on your web site; (b)Placing a link to a web site of others on your web site; (c)Content from a web site of others displayed within a frame or border on your web site. Content includes information, code, sounds, text, graphics or images; or (d)Computer code, software or programming used to enable: (i)Your web site; or (ii)The presentation or functionality of an "advertisement" or other content on your web site;         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 9 of 24 (13)Arising out of a violation of any anti- trust law; (14)Arising out of the fluctuation in price or value of any stocks, bonds or other securities; or (15)Arising out of discrimination or humiliation committed by or at the direction of any "executive officer", director, stockholder, partner or member of the insured. q. Electronic Data Damages arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate "electronic data". r. Employment-Related Practices "Bodily injury" or "personal and advertising injury" to: (1)A person arising out of any: (a)Refusal to employ that person; (b)Termination of that person's employment; or (c)Employment-related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person; or (2)The spouse, child, parent, brother or sister of that person as a consequence of "bodily injury" or "personal and advertising injury" to the person at whom any of the employment-related practices described in Paragraphs (a),(b),or(c) above is directed. This exclusion applies: (1)Whether the insured may be liable as an employer or in any other capacity; and (2)To any obligation to share damages with or repay someone else who must pay damages because of the injury. s. Asbestos (1)"Bodily injury", "property damage" or "personal and advertising injury" arising out of the "asbestos hazard". (2)Any damages, judgments, settlements, loss, costs or expenses that: (a)May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b)Arise out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, encapsulate, contain, treat, detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard"; or (c)Arise out of any claim or suit for damages because of testing for, monitoring, cleaning up, removing, encapsulating, containing, treating, detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". t. Violation Of Statutes That Govern E- Mails, Fax, Phone Calls Or Other Methods Of Sending Material Or Information "Bodily injury", "property damage", or "personal and advertising injury" arising directly or indirectly out of any action or omission that violates or is alleged to violate: (1)The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law; (2)The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or (3)Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the sending, transmitting, communicating or distribution of material or information. Damage To Premises Rented To You – Exception For Damage By Fire, Lightning or Explosion Exclusions c.through h.and k.through o.do not apply to damage by fire, lightning or explosion to premises rented to you or temporarily occupied by you with permission of the owner. A separate Limit of Insurance applies to this coverage as described in Section D.- Liability And Medical Expenses Limits Of Insurance.         BUSINESS LIABILITY COVERAGE FORM Page 10 of 24 Form SS 00 08 04 05 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers' Compensation And Similar Laws To a person, whether or not an "employee" of any insured, if benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games, sports or athletic contests. f. Products-Completed Operations Hazard Included with the "products-completed operations hazard". g. Business Liability Exclusions Excluded under Business Liability Coverage. C. WHO IS AN INSURED 1.If you are designated in the Declarations as: a.An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b.A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c.A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d.An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e.A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2.Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1)"Bodily injury" or "personal and advertising injury": (a)To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co-"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b)To the spouse, child, parent, brother or sister of that co- "employee" or that "volunteer worker" as a consequence of Paragraph (1)(a)above; (c)For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a)or (b)above; or (d)Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services, Paragraph (d)does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2)"Property damage" to property: (a)Owned, occupied or used by,         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 11 of 24 (b)Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1)With respect to liability arising out of the maintenance or use of that property; and (2)Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a.Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and b.Coverage under this provision does not apply to: (1)"Bodily injury" or "property damage" that occurred; or (2)"Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment" registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a."Bodily injury" to a co-"employee" of the person driving the equipment; or b."Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a."Bodily injury" to a co-"employee" of the person operating the watercraft; or b."Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a.through f.below are additional insureds when you have agreed, in a written         BUSINESS LIABILITY COVERAGE FORM Page 12 of 24 Form SS 00 08 04 05 contract, written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement, or the issuance of the permit. A person or organization is an additional insured under this provision only for that period of time required by the contract, agreement or permit. However, no such person or organization is an additional insured under this provision if such person or organization is included as an additional insured by an endorsement issued by us and made a part of this Coverage Part, including all persons or organizations added as additional insureds under the specific additional insured coverage grants in Section F.– Optional Additional Insured Coverages. a. Vendors Any person(s) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". (1)The insurance afforded to the vendor is subject to the following additional exclusions: This insurance does not apply to: (a)"Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b)Any express warranty unauthorized by you; (c)Any physical or chemical change in the product made intentionally by the vendor; (d)Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e)Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f)Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g)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; or (h)"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: (i)The exceptions contained in Subparagraphs (d)or (f);or (ii)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. (2)This insurance does not apply to 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. b. Lessors Of Equipment (1)Any person or organization from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization.         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 13 of 24 (2)With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1)Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. (2)With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a)Any "occurrence" which takes place after you cease to lease that land or be a tenant in that premises; or (b)Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors (1)Any architect, engineer, or surveyor, but 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: (a)In connection with your premises; or (b)In the performance of your ongoing operations performed by you or on your behalf. (2)With respect to the insurance afforded to these additional insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including: (a)The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b)Supervisory, inspection, architectural or engineering activities. e. Permits Issued By State Or Political Subdivisions (1)Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2)With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a)"Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b)"Bodily injury" or "property damage" included within the "products- completed operations hazard". f. Any Other Party (1)Any other person or organization who is not an insured under Paragraphs a. through e. above, but 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: (a)In the performance of your ongoing operations; (b)In connection with your premises owned by or rented to you; or (c)In connection with "your work" and included within the "products- completed operations hazard", but only if (i)The written contract or written agreement requires you to provide such coverage to such additional insured; and (ii)This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products- completed operations hazard". (2)With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including:         BUSINESS LIABILITY COVERAGE FORM Page 14 of 24 Form SS 00 08 04 05 (a)The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b)Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds are described in Section D.–Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E.– Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a.Insureds; b.Claims made or "suits" brought; or c.Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a.Damages because of "bodily injury" and "property damage" included in the "products-completed operations hazard" is the Products-Completed Operations Aggregate Limit shown in the Declarations. b.Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a.or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b.above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a.The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b.The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section.         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 15 of 24 If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in Paragraph 3.above. The Limits of Insurance of this Coverage Part 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 purposes of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1)How, when and where the "occurrence" or offense took place; (2)The names and addresses of any injured persons and witnesses; and (3)The nature and location of any injury or damage arising out of the "occurrence" or offense. b. Notice Of Claim If a claim is made or "suit" is brought against any insured, you or any additional insured must: (1)Immediately record the specifics of the claim or "suit" and the date received; and (2)Notify us as soon as practicable. You or any additional insured must see to it that we receive a written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: (1)Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; (2)Authorize us to obtain records and other information; (3)Cooperate with us in the investigation, settlement of the claim or defense against the "suit"; and (4)Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The Insured's Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. e. Additional Insured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance. f. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs a.and b.apply to you or to any additional insured only when such "occurrence", offense, claim or "suit" is known to: (1)You or any additional insured that is an individual; (2)Any partner, if you or an additional insured is a partnership; (3)Any manager, if you or an additional insured is a limited liability company; (4)Any "executive officer" or insurance manager, if you or an additional insured is a corporation; (5)Any trustee, if you or an additional insured is a trust; or (6)Any elected or appointed official, if you or an additional insured is a political subdivision or public entity.         BUSINESS LIABILITY COVERAGE FORM Page 16 of 24 Form SS 00 08 04 05 This Paragraph f.applies separately to you and any additional insured. 3. Financial Responsibility Laws a.When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b.With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages. 4. Legal Action Against Us No person or organization has a right under this Coverage Form: a.To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b.To sue us on this Coverage Form unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this insurance or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 5. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies: a.As if each Named Insured were the only Named Insured; and b.Separately to each insured against whom a claim is made or "suit" is brought. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1)The statements in the Declarations are accurate and complete; (2)Those statements are based upon representations you made to us; and (3)We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure. 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g.of Section A.– Coverages. (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k.of Section A.– Coverages.         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 17 of 24 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non-Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a)and (b)do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we 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. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all 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. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage.         BUSINESS LIABILITY COVERAGE FORM Page 18 of 24 Form SS 00 08 04 05 F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6.(Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations. These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy, except as provided below: 1. Additional Insured - Designated Person Or Organization WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations, but 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: a.In the performance of your ongoing operations; or b.In connection with your premises owned by or rented to you. 2. Additional Insured - Managers Or Lessors Of Premises a.WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Designated Person Or Organization; but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Declarations. b.With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1)Any "occurrence" which takes place after you cease to be a tenant in that premises; or (2)Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 3. Additional Insured - Grantor Of Franchise WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Grantor Of Franchise, but only with respect to their liability as grantor of franchise to you. 4. Additional Insured - Lessor Of Leased Equipment a.WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured – Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b.With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. 5. Additional Insured - Owners Or Other Interests From Whom Land Has Been Leased a.WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured – Owners Or Other Interests From Whom Land Has Been Leased, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations. b.With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1)Any "occurrence" that takes place after you cease to lease that land; or (2)Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 6. Additional Insured - State Or Political Subdivision – Permits a.WHO IS AN INSURED under Section C.is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 19 of 24 Insured – State Or Political Subdivision - Permits, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. b.With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1)"Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (2)"Bodily injury" or "property damage" included in the "product-completed operations" hazard. 7. Additional Insured – Vendors a.WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) (referred to below as vendor) shown in the Declarations as an Additional Insured - Vendor, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". b.The insurance afforded to the vendor is subject to the following additional exclusions: (1)This insurance does not apply to: (a)"Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b)Any express warranty unauthorized by you; (c)Any physical or chemical change in the product made intentionally by the vendor; (d)Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e)Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f)Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g)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; or (h)"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: (i)The exceptions contained in Subparagraphs (d)or (f);or (ii)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. (2)This insurance does not apply to 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. 8. Additional Insured – Controlling Interest WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured – Controlling Interest, but only with respect to their liability arising out of: a.Their financial control of you; or b.Premises they own, maintain or control while you lease or occupy these premises.         BUSINESS LIABILITY COVERAGE FORM Page 20 of 24 Form SS 00 08 04 05 This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. 9. Additional Insured – Owners, Lessees Or Contractors – Scheduled Person Or Organization a.WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured – Owner, Lessees Or Contractors, but 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: (1)In the performance of your ongoing operations for the additional insured(s); or (2)In connection with "your work" performed for that additional insured and included within the "products- completed operations hazard", but only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". b.With respect to the insurance afforded to these additional insureds, this insurance does not apply to "bodily injury", "property damage" or "personal an advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: (1)The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (2)Supervisory, inspection, architectural or engineering activities. 10. Additional Insured – Co-Owner Of Insured Premises WHO IS AN INSURED under Section C.is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured – Co- Owner Of Insured Premises, but only with respect to their liability as co-owner of the premises shown in the Declarations. The limits of insurance that apply to additional insureds are described in Section D.–LimitsOf Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E.– Liability And Medical Expenses General Conditions. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1."Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1)Radio; (2)Television; (3)Billboard; (4)Magazine; (5)Newspaper; b.The Internet, but only that part of a web site that is about goods, products or services for the purposes of inducing the sale of goods, products or services; or c.Any other publication that is given widespread public distribution. However, "advertisement" does not include: a.The design, printed material, information or images contained in, on or upon the packaging or labeling of any goods or products; or b.An interactive conversation between or among persons through a computer network. 2."Advertising idea" means any idea for an "advertisement". 3."Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4."Auto" means a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment. But "auto" does not include "mobile equipment". 5."Bodily injury" means physical: a.Injury; b.Sickness; or c.Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6."Coverage territory" means:         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 21 of 24 a.The United States of America (including its territories and possessions), Puerto Rico and Canada; b.International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a.above; c.All other parts of the world if the injury or damage arises out of: (1)Goods or products made or sold by you in the territory described in a.above; (2)The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3)"Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in a "suit" on the merits according to the substantive law in such territory, or in a settlement we agree to. 7."Electronic data" means information, facts or programs: a.Stored as or on; b.Created or used on; or c.Transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8."Employee" includes a "leased worker". "Employee" does not include a "temporary worker". 9."Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10."Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11."Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because: a.It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or b.You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a.The repair, replacement, adjustment or removal of "your product" or "your work"; or b.Your fulfilling the terms of the contract or agreement. 12."Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D.– Liability and Medical Expenses Limits of Insurance. b.A sidetrack agreement; c.Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d.Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e.An elevator maintenance agreement; or f.That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization, provided the "bodily injury" or "property damage" is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f.includes that part of any contract or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing. However, Paragraph f.does not include that part of any contract or agreement:         BUSINESS LIABILITY COVERAGE FORM Page 22 of 24 Form SS 00 08 04 05 (1)That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a)Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b)Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2)Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1)above and supervisory, inspection, architectural or engineering activities. 13."Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker". 14."Loading or unloading" means the handling of property: a.After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto"; b.While it is in or on an aircraft, watercraft or "auto"; or c.While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15."Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: a.Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b.Vehicles maintained for use solely on or next to premises you own or rent; c.Vehicles that travel on crawler treads; d.Vehicles, whether self-propelled or not, on which are permanently mounted: (1)Power cranes, shovels, loaders, diggers or drills; or (2)Road construction or resurfacing equipment such as graders, scrapers or rollers; e.Vehicles not described in a.,b.,c.,ord. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1)Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2)Cherry pickers and similar devices used to raise or lower workers; f.Vehicles not described in a.,b.,c.,ord. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": (1)Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily for: (a)Snow removal; (b)Road maintenance, but not construction or resurfacing; or (c)Street cleaning; (2)Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3)Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment. 16."Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17."Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a.False arrest, detention or imprisonment; b.Malicious prosecution;         BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 Page 23 of 24 c.The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that the person occupies, committed by or on behalf of its owner, landlord or lessor; d.Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e.Oral, written or electronic publication of material that violates a person's right of privacy; f.Copying, in your "advertisement", a person’s or organization’s "advertising idea" or style of "advertisement"; g.Infringement of copyright, slogan, or title of any literary or artistic work, in your "advertisement"; or h.Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. 18."Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 19."Products-completed operations hazard"; a.Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except: (1)Products that are still in your physical possession; or (2)Work that has not yet been completed or abandoned. However, "your work" will be deemed to be completed at the earliest of the following times: (a)When all of the work called for in your contract has been completed. (b)When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c)When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you own or rent, unless your business includes the selling, handling or distribution of "your product" for consumption on premises you own or rent. b.Does not include "bodily injury" or "property damage" arising out of: (1)The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2)The existence of tools, uninstalled equipment or abandoned or unused materials. 20."Property damage" means: a.Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b.Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of "occurrence" that caused it. As used in this definition, "electronic data" is not tangible property. 21."Suit" means a civil proceeding in which damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" includes: a.An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or b.Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22."Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23."Volunteer worker" means a person who: a.Is not your "employee";         BUSINESS LIABILITY COVERAGE FORM Page 24 of 24 Form SS 00 08 04 05 b.Donates his or her work; c.Acts at the direction of and within the scope of duties determined by you; and d.Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24."Your product": a.Means: (1)Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a)You; (b)Others trading under your name; or (c)A person or organization whose business or assets you have acquired; and (2)Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b.Includes: (1)Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product"; and (2)The providing of or failure to provide warnings or instructions. c.Does not include vending machines or other property rented to or located for the use of others but not sold. 25. "Your work": a.Means: (1)Work or operations performed by you or on your behalf; and (2)Materials, parts or equipment furnished in connection with such work or operations. b.Includes: (1)Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work"; and (2)The providing of or failure to provide warnings or instructions.