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HomeMy WebLinkAboutReports - 2023.07.20 - 40269 AGENDA ITEM: Extension with Elavon Services (“Elavon”) for Credit Card Services DEPARTMENT: Information Technology MEETING: Board of Commissioners DATE: Thursday, July 20, 2023 8:35 PM - Click to View Agenda ITEM SUMMARY SHEET COMMITTEE REPORT TO BOARD Resolution #2023-3123 Motion to approve the one-year contract extension with Elavon Inc. through August 30, 2025; further, for an amount not to exceed $2,700,000 for the two-year extension bringing the contract "not to exceed" amount to $8,520,000 from $5,820,000; further, that a budget amendment is not required as there is sufficient funding within Information Technology's FY 2023 – FY 2025 operating budget to cover the cost of the expenditure. ITEM CATEGORY SPONSORED BY Contract Gwen Markham INTRODUCTION AND BACKGROUND The existing Elavon contract expires on 8/30/23 after 5 years of previous renewals. The contract includes merchant credit card services for Oakland County and G2G Agencies. I.T. is requesting the contract be extended for an additional 2 years. Elavon is the credit card processor that provides credit card transactions between our encrypted gateway provider, PayPal and Oakland County's technology and PCI (Payment Card Industry) environment. Oakland County I.T. Department uses the contract to build the eCommerce system into Oakland County applications, allowing Departments and government agencies to take payments online with each Departments application. For example: Pay Delinquent Taxes, Vital Records, Court Explorer, Property Gateway, Clemis, etc. Oakland County currently uses the software from Elavon Inc. for credit card processing. The current Contract #CON00009365 with Elavon Inc. (vendor) was executed on 05/01/2016, extended in May 09, 2022 and expires on 08/30/2023. The Departments of Information Technology and Purchasing have negotiated a two-year extension with Elavon Inc. at a cost of $1,350,000 per year bringing the contract "not to exceed" amount to $8,520,000 from $5,820,000. The Purchasing Terms and Conditions in Section 2400.6 Duration of Contracts and under Procedure states "The Board of Commissioners shall approve contracts beyond five years." BUDGET AMENDMENT REQUIRED: No Committee members can contact Michael Andrews, Policy and Fiscal Analysis Supervisor at 248.425.5572 or andrewsmb@oakgov.com, or the department contact persons listed for additional information. CONTACT Rod Davenport, Chief Information Officer ITEM REVIEW TRACKING Aaron Snover, Board of Commissioners Created/Initiated - 7/20/2023 AGENDA DEADLINE: 07/30/2023 8:35 PM ATTACHMENTS 1. Elavon Agreement 2. AMENDMENT 01 OF CONTRACT 004741 DATE: May 14, 2019 3. AMENDMENT 02 OF CONTRACT 004741 DATE: March 24, 2022 COMMITTEE TRACKING 2023-07-12 Finance - Recommend to Board 2023-07-20 Full Board - Adopt Motioned by: Commissioner Robert Hoffman Seconded by: Commissioner Angela Powell Yes: David Woodward, Michael Spisz, Michael Gingell, Penny Luebs, Karen Joliat, Kristen Nelson, Christine Long, Robert Hoffman, Philip Weipert, Gwen Markham, Angela Powell, Marcia Gershenson, Janet Jackson, Charles Cavell, Brendan Johnson, Ajay Raman (16) No: None (0) Abstain: None (0) Absent: Gary McGillivray, William Miller III, Yolanda Smith Charles (3) Passed THIRD PARTY AGENT AGREEMENT THIS THIRD PARTY AGENT AGREEMENT, together with the Third Party Agent Agreement Terms and Conditions (the “Terms and Conditions”) and all Schedules and Exhibits identified as applicable below, is entered into as of the Effective Date among Elavon, Inc. (“Elavon”), the entity identified below as Member (“Member”) and the Third Party Agent whose name and address appears below (“Agent”). Agent desires to provide products and/or services to merchants that utilize Elavon, its affiliates or subsidiaries (hereafter, each an “Elavon Company”) for financial transaction processing of credit cards, debit cards and other Payment Devices (“Merchants”) including such cards as are issued for acceptance on the payment networks operated by Visa, Inc. (“Visa”), MasterCard International Incorporated (“MasterCard”), and other Payment Network operators. These products and/or services include only those listed on Exhibit 1 (the “Products and/or Services”). In order to provide the Products and/or Services to Merchants, Agent must be registered by Member with certain Payment Networks and may require access to certain technical specifications related to the Elavon Network that are confidential and proprietary to Elavon. Elavon and Member are willing to register Agent with applicable Payment Networks and to provide Agent with access to, and a license to use, the Elavon technical specifications in consideration of Agent’s agreement to the terms set forth herein. This Agreement and the relationship among Elavon, Member and Agent created hereby are governed by the Terms and Conditions and each of the Schedules and Exhibits indicated below, which, as updated from time to time, can be found at www.tellmemore.elavon.com/registration and which are incorporated herein and made a part of the Agreement by this reference. Terms and Conditions – Apply in all Agents. Schedule A – Applies to any Agent that stores, processes or otherwise handles Cardholder or Transaction data in its provision of Products or Services to Merchants, including: (i) a Member Service Provider (non-ISO) including where applicable a Data Storage Entity and/or a Third Party Processor (as such terms are defined by MasterCard); and (ii) a Third Party Agent (non -ISO) including where applicable a Third Party Servicer and/or a Merchant Servicer (as such terms are defined by Visa). Exhibit 1 – Agent Products and/or Services Exhibit 2 – Fees, E&O Insurance Level This Agreement shall commence on the Effective Date and continue in full force and effect for three (3) years, unless otherwise terminated in accordance with the terms hereof (the “Initial Term”). Thereafter, this Agreement shall automatically renew fo r successive terms of one (1) year each, unless otherwise terminated in accordance with the terms hereof (each a “Renewal Term”). IN WITNESS WHEREOF, the parties hereto have executed the Agreement. _________________________________________________, ( “AGENT”): By: Name: Title: ELAVON, INC. By: Name: Title: (“Effective Date”) Agent Address for Notices: ____________________________________ ____________________________________ ____________________________________ MEMBER By: Name: Title: Cara D Melenyzer Scott Guzzy 2100 Pontiac Lake Rd Bldg 41 West Waterford, MI 48328 Oakland County Compliance 004741 Deputy General CounselPurchasing Administrator Cara D. Melenyzer Vice President. The County of Oakland Cara D. Melenyzer (Aug 4, 2016) Cara D. Melenyzer Cara D. Melenyzer (Aug 4, 2016) Cara D. Melenyzer Scott N. Guzzy (Aug 4, 2016) Scott N. Guzzy Elavon Third Party Agent Agreement Terms and Conditions FINAL (v.3.13) THIRD PARTY AGENT AGREEMENT – TERMS AND CONDITIONS 1.DEFINITIONS; RULES OF CONSTRUCTION (a) Definitions.Capitalized terms used in this Agreement and in any applicable Schedule or Exhibit to this Agreement shall have the meanings ascribed below or elsewhere in this Agreement. “Agreement” shall mean the Third Party Agent Agreement, including the Terms and Conditions and all Schedules and Exhibits incorporated by reference therein. “Payment Network” shall mean any credit card association, electronic funds transfer network or electronic check association, governmental agency or authority and any other entity or association that issues or sponsors a Payment Device. “Payment Device” shall mean any device or method used for the purpose of obtaining credit or debiting a designated account including a credit card, debit card, and any other financial transaction device or method. References herein to “Elavon” shall, where the context requires, include reference to Elavon Canada Company, an affiliate of Elavon providing financial transaction processing services in Canada. (b) Rules of Construction. Captions in this Agreement and in the attached Schedules and Exhibits are for convenience only and do not constitute a limitation of the terms in this Agreement. Singular terms shall include the plural, and vice versa, unless the context otherwise requires. The word “day” shall mean “calendar day” unless specifically stated otherwise. Reference in this Agreement to “include” and “including” are meant to be inclusive and shall be deemed to mean “include without limitation” or “including without limitation.” 2.TERM AND TERMINATION (a) This Agreement shall have the Initial Term and Renewal Terms set forth on the first page hereof. (b) Elavon or Member may terminate this Agreement immediately upon the occurrence of any of the following: (i) A breach of any term or condition of this Agreement by Agent that remains uncured for thirty (30) days following notice by Elavon to Agent of such breach, provided that no notice or cure period shall be required where to do so would, in Elavon’s sole reasonable discretion, cause Elavon or its employees, agents or affiliates, or any Payment Network continued or additional material financial, regulatory or legal risk. Further, and for avoidance of doubt, where Agent’s breach is the result solely of noncompliance with Payment Network Rules, Elavon shall not unreasonably deny Agent any period afforded in turn by the Payment Network to cure the breach; (ii) The termination of the agreements between Agent and all Merchants; (iii) The loss by Agent of required registration or certification of Visa, MasterCard or any other Payment Network, including such loss due to any act or omission of Elavon or Member or as may be required by Visa, MasterCard or any other Payment Network; (iv) The loss of the ability of all Merchants that use Agent’s Products and/or Services to accept Payment Devices for transactions; (v) If Agent (A) becomes insolvent, (B) suffers or permits the appointment of a receiver for its business or assets, (C) becomes subject to any involuntary proceeding under the bankruptcy or insolvency laws of any jurisdiction or any proceeding relating to the protection of the rights of creditors, which proceeding is not dismissed within ninety (90) days, or (D) makes a general assignment for the benefit of creditors, or avails itself of any proceeding under the bankruptcy laws of any jurisdiction or any proceeding relating to the protection of the rights of creditors; or (vi) In the event Elavon, in its sole reasonable discretion, determines that Agent has conducted itself in such a manner that Agent has created a material and unacceptable reputational, financial or operational risk to Elavon. (c) Elavon, Member or Agent may terminate this Agreement without cause at the end of the Initial Term or any Renewal Term by providing the other parties with written notice of termination at least ninety (90) days prior to the end of such term. (d) Upon any termination of this Agreement, at Elavon’s reasonable request, Agent shall cooperate with Elavon in transferring those Merchants no longer using, or wishing to use Agent’s Products and/or Services to other service providers, and Agent shall make available to Elavon all information Agent possesses regarding such Merchants in such form as Elavon may reasonably request, together with adequate instructions concerning the format and means of accessing that information. The requirements of this Section 2(d) shall not apply to any Merchants that were customers of Agent prior to the Effective Date. 3.CONFIDENTIALITY Elavon Third Party Agent Agreement Terms and Conditions FINAL (v.3.13) (a) In connection with the performance of this Agreement (including, in the case of Agent, in the performance of any Product and/or Service), each party hereto may (as “Receiving Party”) receive, directly or from third parties, certain oral and written information relating to the business of the other party (as “Disclosing Party”) which is otherwise proprietary or confidential to the Disclosing Party, including but not limited to technical specifications and source code (collectively “Confidential Information”). Confidential Information shall not include information which the Receiving Party can show: (i) was already known by the Receiving Party without fault on its part at the time of execution of this Agreement; (ii) becomes publicly known through no act or fault of the Receiving Party; (iii) was lawfully disclosed to the Receiving Party by a third party having the independent right to disclose such information at the time of such disclosure; and (iv) is separately developed by the Receiving Party without reference to the Confidential Information. (b) The Confidential Information will be used solely and exclusively in connection with the performance of this Agreement, and save for where otherwise provided by Section 2(d) herein upon termination of this Agreement, not in any way materially detrimental to the Disclosing Party. The Receiving Party acknowledges and agrees that the Confidential Information will consist of, and that the Receiving Party may have access to, Trade Secrets of the Disclosing Party and other confidential and proprietary information, and that the disclosure or unauthorized use of such Trade Secrets or other Confidential Information by the Receiving Party will injure the Disclosing Party. Receiving Party agrees that (other than as explicitly provided herein or agreed to in writing by the Disclosing Party) it will not, at any time, use without the Disclosing Party’s approval, reveal or divulge any Trade Secrets concerning the Disclosing Party. Further, the Receiving Party agrees that during the Initial Term and any Renewal Term of this Agreement, and for a period of two (2) years from the termination of this Agreement (or such longer period as is permitted by law), it will not use without the Disclosing Party’s approval, reveal or divulge any Confidential Information concerning the Disclosing Party. For purposes of this Agreement, the term “Trade Secrets” shall mean: the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information (whether oral or in writing) relating to any business or profession which is secret and of value. (c) Immediately upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party (or destroy and certify to the Disclosing Party as to the destruction of) all copies of Confidential Information in its possession, and the Receiving Party will destroy all copies of any analyses, compilations, and studies or other documents prepared by the Receiving party or for its use containing or reflecting, or developed with respect to, any Trade Secret or Confidential Information. Save for where otherwise provided for at Section 3(a) of this Agreement, Receiving Party understands and acknowledges that the Disclosing Party is not making, nor will it make at the time of the disclosure of any Trade Secret or Confidential Information, any representation or warranty, express or implied, as to the accuracy or completeness of such Trade Secret or Confidential Information, and neither the Disclosing Party nor any of its officers, directors, employees, stockholders, owners, affiliates, agents or representatives will have any liability to the Receiving Party or any other person resulting from the use of any Trade Secret or Confidential Information. (d) The Receiving Party agrees that remedies at law for any actual or threatened breach by it of the covenants contained in this Section 3(a)-(d) would be inadequate and that the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach by the Receiving Party of the provisions of this Section, in addition to all other remedies available to the Disclosing Party at law or in equity. 4.INDEMNITY AND LIMITATION OF LIABILITY (a) Agent agrees to indemnify, defend and hold Elavon and Member harmless from any and all liabilities, claims, losses, costs and expenses, including, but not limited to, reasonable in-house counsel and outside attorneys’ and accountants’ fees and any fees, fines, penalties or assessments charged by Visa, MasterCard and/or any other Payment Network, which are related to Agent’s failure to comply with the terms and conditions of this Agreement. (b) Elavon agrees to indemnify, defend and hold Agent harmless from any and all liabilities, claims, losses, costs and expenses, including, but not limited to, reasonable in-house counsel and outside attorneys’ and accountants’ fees caused by Elavon’s or Member’s gross negligence or willful misconduct in its performance of its obligations under this Agreement. (c) Save for liability for a breach of a confidentiality or data security provision hereunder, no party hereto shall be liable for any indirect, incidental, special, Elavon Third Party Agent Agreement Terms and Conditions FINAL (v.3.13) consequential or punitive damages, including but not limited to, damages for loss of profits, business opportunity, use, data or other intangibles, even if such party has been advised of the possibility of such damages. Save for any indemnification liability of Elavon to Agent for breach of a confidentiality provision hereunder, in no event shall Elavon’s or Member’s total liability under this Agreement exceed $5,000.00. 5.AUDIT AND RECORDS (a) Agent authorizes Elavon, Member, Visa, MasterCard, any other Payment Network, and any regulatory authority having jurisdiction over Elavon or Member, upon such advance notice as is reasonable in the circumstances, during normal business hours and without unnecessary disruption to Agent’s normal business operations, to conduct financial and procedural audits, including, without limitation, an audit of all of Agent’s records and other information related to the activities within the purview of this Agreement in order to confirm Agent’s compliance with its terms, from time to time during the term hereof. (b) Agent will maintain complete and accurate records of its provision of Products and/or Services to Merchants, and shall make such records available as soon as possible, but in no event later than three (3) business days, from the receipt of a request therefor from Elavon, Member, Visa, MasterCard, any other Payment Network, or any regulatory authority having jurisdiction over Elavon or Member. 6.GENERAL TERMS (a) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Georgia, without regard to its conflict of law provisions. The state and federal courts located in Fulton County, Georgia shall have exclusive venue and jurisdiction over any claim or action filed in connection with this Agreement. Each party agrees to waive its right to a jury trial in any such action or proceeding. (b) Waivers. The failure by either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement shall continue to remain in full force and effect. (c) Amendment; Assignment. This Agreement may be amended by Elavon or Member upon thirty (30) days prior notice to Agent. In addition, in the event Elavon or Member is directed or required by a Payment Network or by a regulatory agency having jurisdiction over Elavon or Member, whether through implementation of a new rule or regulation, through a change in an existing rule or regulation, or otherwise, to amend a term of this Agreement in less than thirty (30) days, Elavon or Member may so amend this Agreement on such notice to Agent as is practicable. If Agent determines that it is unwilling or unable to abide by an amendment to this Agreement effected pursuant to this Section 6(c), the Agent may terminate this Agreement upon written notice to Elavon and Member, which notice shall include the date the termination will be effective. Save as otherwise provided for herein, this Agreement may not be amended except in a writing executed by all parties. This Agreement shall not be assignable or transferable by Agent without the prior written consent of Elavon and Member. A change in control of Agent, by operation of law or otherwise, shall constitute an assignment by Agent for purposes of this provision and shall be null and void unless the required consent is obtained. (d) No Partnership or Joint Venture. Nothing in this Agreement shall constitute, or be construed as creating, a partnership, joint venture or agency relationship between Elavon and Agent or between Member and Agent. No party hereto shall have the authority to act on behalf of the other without prior written consent of the other party. (e) Entire Agreement. This Agreement, together with the Schedules and Exhibits attached hereto, constitutes the entire agreement among the parties hereto relating to the subject matter hereof, and all prior negotiations, agreements and understandings, whether oral or written, are superseded hereby. (f) Binding Nature of Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their representatives and their respective successors and permitted assigns. The provisions of this Agreement that by their terms or their operation should survive the termination of this Agreement (including Sections 3, 4, and 6(a), 6(d) and 6(h)) shall so survive. Agent acknowledges and agrees that where Elavon Canada Company, Elavon’s Canadian affiliate is providing services to Merchants described in this Agreement, Elavon Canada Company is an intended third party beneficiary of this Agreement and is entitled to enforce its terms and conditions against Agent. (g) Force Majeure. No party hereto will be liable to any other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party. Elavon Third Party Agent Agreement Terms and Conditions FINAL (v.3.13) (h) Notices. All notices provided for hereunder shall be in writing and shall be delivered in person, by facsimile, by e-mail or shall be sent by courier or by certified mail with a return receipt requested and shall be effective when delivered, or in the case notices originating in the U.S.A. and dispatched by certified mail, three (3) days following the date deposited in the United States Post Office, postage prepaid and addressed as provided in the signature block above, provided that any notice sent by e-mail shall also be sent by facsimile or courier to be received no later than the following day. Any party may by notice in writing, designate another address or office to which notices may be given pursuant to this Agreement. Oakland County MI Addendum to Third Party Agent Agreement – Government Entities and Institutions (v.5.20.12) FINAL 6.23.14 ADDENDUM TO THIRD PARTY AGENT AGREEMENT GOVERNMENT ENTITIES AND INSTITUTIONS ADDENDUM TO THIRD PARTY AGENT AGREEMENT – GOVERNMENT ENTITIES AND INSTITUTIONS. Agent elects and agrees to accept the Third Party Agent Agreement (the “Agreement”), subject to the modifications for government entities and institutions further described in this Addendum No. 1 to Third Party Agent Agreement – Government Entities and Institutions (the “Addendum”). Except as expressly modified pursuant to this Addendum, all terms and conditions of the Agreement, including all Schedules and Exhibits to the Agreement, remain in full force and effect and shall govern the relationship among the parties to this Addendum. Capitalized terms used and not otherwise defined in this Addendum shall have the meanings ascribed to them in the Agreement, which is incorporated herein by this reference. IN WITNESS WHEREOF, the parties hereto have executed this Addendum. ________________________________________________, (“AGENT”): By: Name: Title: ELAVON, INC. By: Name: Title: (“Addendum Effective Date”) MEMBER By: Name: Title: Scott Guzzy Cara D Melenyzer Purchasing Administrator Deputy General Counsel Cara D. Melenyzer Vice President The County of Oakland Cara D. Melenyzer (Aug 4, 2016) Cara D. Melenyzer Cara D. Melenyzer (Aug 4, 2016) Cara D. Melenyzer Scott N. Guzzy (Aug 4, 2016) Scott N. Guzzy Oakland County MI Addendum to Third Party Agent Agreement – Government Entities and Institutions (v.5.20.12) FINAL 6.23.14 Section 1 – Modifications to Third Party Agent Agreement – Terms and Conditions 1)The following provisions hereby replace or delete, as indicated, the like-numbered provisions of the Terms and Conditions provisions of the Agreement for Agents operating under this Addendum. a)Section 2(d) is deleted. b)Section 3(b) is revised to read as follows: “The Confidential Information will be used solely and exclusively in connection with the performance of this Agreement, and save for where otherwise provided by Section 2(d) herein upon termination of this Agreement, not in any way materially detrimental to the Disclosing Party. The Receiving Party acknowledges and agrees that the Confidential Information will consist of, and that the Receiving Party may have access to, Trade Secrets of the Disclosing Party and other confidential and proprietary information, and that the disclosure or unauthorized use of such Trade Secrets or other Confidential Information by the Receiving Party will injure the Disclosing Party. Receiving Party agrees that (other than as explicitly provided herein or agreed to in writing by the Disclosing Party) it will not, at any time, use without the Disclosing Party’s approval, reveal or divulge any Trade Secrets concerning the Disclosing Party. Further, the Receiving Party agrees that during the Initial Term and any Renewal Term of this Agreement, and for a period of two (2) years from the termination of this Agreement (or such longer period as is permitted by law), it will not use without the Disclosing Party’s approval, reveal or divulge any Confidential Information concerning the Disclosing Party. For purposes of this Agreement, the term “Trade Secrets” shall mean: the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information (whether oral or in writing) relating to any business or profession which is secret and of value. Notwithstanding the foregoing, Agent will comply with the relevant open records laws of its jurisdiction, provided that Elavon and/or Member shall have the opportunity to exercise its legal rights under the open records laws to prevent the disclosure of Trade Secrets or Confidential Information.” c)Section 3(c) is revised to read as follows: “Immediately upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party (or destroy and certify to the Disclosing Party as to the destruction of) all copies of Confidential Information in its possession, and the Receiving Party will destroy all copies of any analyses, compilations, and studies or other documents prepared by the Receiving party or for its use containing or reflecting, or developed with respect to, any Trade Secret or Confidential Information, provided that where Agent is the Receiving Party, it will dispose of or destroy such information where permitted by law. Save for where otherwise provided for at Section 3(a) of this Agreement, Receiving Party understands and acknowledges that the Disclosing Party is not making, nor will it make at the time of the disclosure of any Trade Secret or Confidential Information, any representation or warranty, express or implied, as to the accuracy or completeness of such Trade Secret or Confidential Information, and neither the Disclosing Party nor any of its officers, directors, employees, stockholders, owners, affiliates, agents or representatives will have any liability to the Receiving Party or any other person resulting from the use of any Trade Secret or Confidential Information.” d)Section 4(a) is revised to read as follows: “Agent will pay and/or defend (at no expense to Elavon, Member or any Payment Network) against any claims, losses, demands, or damages (including any fees, fines, penalties and assessments) imposed as a result of, or alleged to arise from (i) Agent’s breach of the Agreement, (ii) a claim by any Merchant or other third party against Agent in connection with or in any way related to this Agreement or any services performed by Agent with respect to such Merchant or (iii) Agent’s negligence, gross negligence, or willful misconduct. Agent will not make any claims against Elavon or Member for any liabilities, claims, losses, costs, expenses, demands or damages of any kind or nature arising out of or in connection with any of the foregoing suits, claims, losses, costs, expenses, demands or damages.” e)Section 6(a) Governing Law; Venue is deleted. Section 2 – Modifications to Third Party Agent Agreement – Schedule A 2) The following provisions hereby replace the like- numbered provisions of Schedule A to the Agreement or are hereby deleted from Schedule A to the Agreement, as indicated, for Agents operating under Schedule A. a)Section 1(k) is revised to read as follows: “RESERVED”. b)Section 2(a) is revised to read as follows: “RESERVED”. c)Section 2(h) is revised to read as follows” “Agent will not represent that registration of Agent with any Payment Network constitutes that Oakland County MI Addendum to Third Party Agent Agreement – Government Entities and Institutions (v.5.20.12) FINAL 6.23.14 Payment Network’s endorsement of Agent or its Products and/or Services. Agent will not knowingly take any action that could interfere with or prevent the right of any Payment Network to enforce its rights under applicable law or any applicable rule or regulation of the Payment Networks; and” Section 3 – Modifications to Third Party Agent Agreement – Schedule B 3) The following provisions hereby replace the like- numbered provisions of Schedule B to the Agreement or are hereby deleted from Schedule B to the Agreement, as indicated, for Agents operating under Schedule B. a)Section 1(f) is revised to read as follows: “RESERVED”. b)Section 2(a) is revised to read as follows: “RESERVED”. Section 4 – Modifications to Third Party Agent Agreement – Schedule C 4) The following provisions hereby replace the like- numbered provisions of Schedule C to the Agreement or are hereby deleted from Schedule C to the Agreement, as indicated, for Agents operating under Schedule C. a)Section 1(h) is revised to read as follows: “RESERVED”. b)Section 2(a) is revised to read as follows: “RESERVED”. Elavon Third Party Agent Agreement Schedule A FINAL (v. 3.13) THIRD PARTY AGENT AGREEMENT – SCHEDULE A 1.AGENT OBLIGATIONS (a) Agent will enter into a written agreement with each Merchant prior to providing any Products and/or Services to the Merchant, which agreement will set forth the rights and obligations of Agent and the Merchant. Agent shall provide verification to Elavon that such agreements are in effect and shall supply copies of applicable terms and conditions of any of such agreements to Elavon upon request. Agent shall not be obliged to supply pricing or other commercial terms of such agreements. (b) With regard to any Product and/or Service that transmits information to Elavon’s proprietary front-end network (the “Elavon Network”), the Product and/or Service must be certified by Elavon before Agent may provide the Product and/or Service to any Merchant. Any such Product and/or Service that is modified by Agent must be re-certified by Elavon prior to distribution to any Merchant. Elavon Network Products and/or Services that Agent desires to provide to Merchants and that have been certified and approved by Elavon are identified under the heading “Elavon Network Products and/or Services” on Exhibit 1 to the Agreement. In the event Agent desires to add a product and/or service that transmits information to the Elavon Network to Exhibit 1, Agent will notify Elavon and obtain certification and approval from Elavon for such product and/or service prior to distribution to any Merchant. Transactions submitted to the Elavon Network must be transmitted, either by the Merchant or Agent, in a format that the Elavon Network will accept. (c) In the event that Agent provides Products and/or Services to a Merchant that processes transactions through a non-Elavon front-end network (a “Foreign Network”), Agent shall identify such Products and/or Services on Exhibit 1 to the Agreement under the heading “Foreign Network Products and/or Services”. Agent may provide to a Merchant only a Product and/or Service that has been certified by the Foreign Network and that has been identified in Exhibit 1. Any such Product and/or Service that is modified by Agent must be re-certified by the Foreign Network prior to distribution to any Merchant. In the event Agent desires provide a product and/or service for use by a Merchant that transmits information to a Foreign Network, Agent will notify the Foreign Network and will obtain certification from the Foreign Network for such product and/or service prior to distribution to any Merchant. Upon certification, Agent shall provide written notice to Elavon listing name and function of the certified product and/or service as well as the name of the certifying Foreign Network. Transactions submitted to a Foreign Network must be submitted in a form the Foreign Network will accept. (d) Products and/or Services that Agent desires to provide to Merchants that do not transmit information to the Elavon Network or to a Foreign Network are identified on Exhibit 1 to the Agreement under the heading “Other Products and/or Services”. Agent will not provide any Product and/or Service to any Merchant that is not identified on Exhibit 1 to the Agreement. (e) Agent shall ensure that its Elavon Network and/or Foreign Network Products and/or Services transmit the required transaction data in an acceptable format to the Elavon Network or the applicable Foreign Network to allow a Merchant’s transactions to qualify for the most favorable interchange category for the Merchant. As between Agent, Elavon and Member, Agent shall be solely responsible to Merchant for the costs of any transactions that downgrade to a less than optimal interchange category as a result of the Merchant’s use of Agent’s Products and/or Services. Elavon Third Party Agent Agreement Schedule A FINAL (v. 3.13) (f) Agent shall not license or permit third parties to use software or hardware provided by Agent to act as a payment gateway to Elavon or any Foreign Network without the express written permission of Elavon. In the event that Agent has previously permitted such use of its software or hardware, Agent will return with this Agreement a list of the third parties to whom Agent has provided its software or hardware for such purpose. (g) Agent shall not subcontract, sublicense, assign, license, franchise or otherwise transfer to any third party any of its rights or obligations under this Agreement or in connection with any Products and/or Services without Elavon’s prior written consent. (h) Agent shall, in relation to the Products and/or Services provided to a Merchant and any activities performed by Agent on behalf of a Merchant, comply with all federal, state and local laws and regulations and all rules and regulations of all applicable Payment Networks as amended from time to time. (i) Agent shall notify Elavon as soon as possible in the event a claim relating to the subject matter of this Agreement or any other agreement between Agent and Elavon or Member is either threatened or filed against Agent by any governmental authority having jurisdiction over Agent. The notice shall identify the governmental authority bringing the claim, the date such claim was filed or is intended to be filed, and the nature of the claim. (ii) Agent shall notify Elavon as soon as possible in the event a claim is either threatened or filed by a Payment Network against Agent or any Merchant to which Agent provides Products and/or Services, or in the event that a fee, fine, penalty or assessment is charged or threatened by a Payment Network against Agent or any Merchant in regard to any Products and/or Services. The notice shall identify which Payment Network is making or threatening the claim or charging or threatening the fee, fine, penalty or assessment, the date the same occurred or is to occur, and the nature of the claim, or amount of fee, fine, penalty or assessment and the basis therefor. (iii) Agent shall be responsible for and shall pay any fee, fine, penalty or assessment imposed by any Payment Network on Elavon, Member, any Merchant or Agent as a result of any act or omission of Agent in violation of any applicable Payment Network rule or regulation. (i) Agent shall, at all times during the term of the Agreement, protect the confidentiality of cardholder, card and card transaction information of Merchants in accordance with all applicable local, state and federal laws and regulations and, further, in accordance with all rules and regulations of the applicable Payment Networks. Agent shall immediately notify Elavon of any cardholder, card or card transaction information compromise of which it becomes aware where the compromise may be attributable to or affect the Products and/or Services, whether such compromise occurred at: (i) the Agent; (ii) a Merchant; or (iii) a third party. (j) Agent agrees to establish and maintain a commercially reasonable disaster recovery and business continuity plan. Agent will, upon request, provide Elavon and Member with a copy of those parts of its current disaster recovery and business continuity plan that are material to its business operations within the purview of this Agreement. Agent agrees to test the operation of such plan on a periodic basis to ensure its effectiveness in providing disaster recovery capability to Agent, and Agent agrees to provide Elavon and Member with a copy of such test results upon request. (k) Agent will notify Elavon promptly in the event that Agent undergoes a transfer of ownership or a change of Elavon Third Party Agent Agreement Schedule A FINAL (v. 3.13) control (including a change in Agent’s principals). (l) Agent will maintain, throughout the term of the Agreement, adequate insurance coverage to protect Elavon and Member from any losses or claims which may arise out of Agent’s obligations under the Agreement, including during any renewal periods and transition periods. Such insurance will include the coverages and amounts identified on Exhibit 2 to this Agreement. (i) Agent shall require all of its subcontractors engaged in performance related to any Product and/or Service to carry insurance coverage and limits of at least the levels to which Agent is required to maintain herein. (ii) Agent shall give Elavon thirty (30) days’ prior written notice of cancellation, non-renewal, or material change in coverage, scope or amount of any insurance policy. Should Agent fail to keep in effect at all times the insurance coverage required under this Section, Elavon and Member may, at their option in addition to and cumulative with any other remedies available at law, equity, or under the Agreement, procure sufficient insurance coverage or a similar instrument, and Agent agrees to reimburse Elavon and Member for any and all costs incurred as a result. (iii) To the extent that any insurance coverage required under this Section is purchased on a “claims- made” basis, such insurance shall cover all prior acts of Agent during the term of this Agreement, and such insurance shall be continuously maintained until at least three (3) years beyond the expiration or termination hereof, or Agent shall purchase “tail” coverage, effective upon termination of any such policy or such termination or expiration of this Agreement, to provide coverage for at least three (3) years from the occurrence of either such event. (iv) All the insurance policies required to be obtained pursuant to this Agreement will be held with companies licensed to do business in the state where Agent carries on its business and rated no less than Standard and Poor’s AAAa to Claims Paying Ability or BBq to Qualified Solvency Rating as to financial rating and no less than A- as to Policy Holder’s Rating in the current edition of Best’s Insurance Guide (or with an association of companies each of the members of which are so rated). The foregoing requirements as to the types and limits of insurance coverage to be maintained by Agent and any approval or waiver of said insurance by Elavon is not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by Agent pursuant to this Agreement, including Agent’s obligations of indemnification. Such insurance will be primary and noncontributory to any insurance or self-insurance maintained by Elavon or Member. Agent shall deliver certificates of insurance and additional insured endorsements for the applicable policies to Elavon at execution of this Agreement and no less than annually or upon Elavon’s request thereafter. The certificates of insurance shall evidence the coverage types, amounts described in this Agreement, shall set forth the amount of all deductibles, and will be endorsed: (A) in the name of Elavon, its officers, agents, and employees as additional insured (only for General Liability policy); (B) to provide that each of the policies is primary insurance with respect to any other insurance or self-insurance available to Elavon or Member as to any claim for which coverage is afforded under the policy; and (C) to provide that the policy shall apply separately to each insured against whom a claim Elavon Third Party Agent Agreement Schedule A FINAL (v. 3.13) is made or suit is brought (only for Commercial General Liability). 2.AGENT’S REPRESENTATIONS AND WARRANTIES Agent represents and warrants to Elavon at the time of execution and throughout the term of this Agreement the following: (a) Agent is a validly existing entity organized and licensed to do business in all jurisdictions in which it provides Products and/or Services to Merchants; (b) All information (financial and otherwise) provided by Agent to Elavon or Member concerning Agent’s business, employees, officers, directors, shareholders is true and complete and properly reflects the business, financial condition and ownership of Agent in all material respects; (c) Agent and the person signing this Agreement on Agent’s behalf have the power to execute and perform the Agreement and, further, the signing and performing in accordance with the Agreement will not violate any law, or conflict with any other agreement to which Agent is subject; (d) Agent is in full compliance with the requirements of the Payment Card Industry Data Security Standard and the Payment Application Data Security Standard (“PCI”), the Customer Information Security Program (“CISP”) of Visa, the Site Data Protection Program (“SDP”) of MasterCard, and any similar requirements of other Payment Networks as applicable, and any modifications to such programs that may occur from time to time (collectively the “Data Security Program”). Agent shall maintain compliance with each applicable Data Security Program and, at the request of Elavon, shall supply Elavon with documentation reasonably satisfactory to Elavon verifying such compliance. Agent will promptly notify Elavon and Member in writing if Agent has reason to believe that cardholder, card or card transaction information has been or may have been accessed by an unauthorized person; (e) Agent has and shall maintain all registrations and certifications required by the Payment Networks to permit Agent to provide the Products and/or Services, and shall provide Elavon and any Payment Network with all information requested by Elavon or the Payment Network. Agent shall pay all charges and fees associated with obtaining and retaining such registrations, including any charges or fees payable to Elavon as set forth at Exhibit 2 hereto as such charges and fees may be amended by Elavon upon notice to Agent; (f) Agent has received, understands and agrees to comply with all applicable rules and requirements of the Payment Networks, as amended from time to time, including the rules and requirements applicable to third parties. In the event of any inconsistency between this Agreement and such rules pertaining to the subject matter hereof, the rules shall control; (g) Agent shall maintain no less than industry-standard secure facilities and has taken appropriate steps to safeguard all Confidential Information in whatever form received; (h) Agent will not represent that registration of Agent with any Payment Network constitutes that Payment Network’s endorsement of Agent or its Products and/or Services. Agent will not take any action that could interfere with or prevent the right of any Payment Network to enforce its rights under applicable law or any applicable rule or regulation of the Payment Network; and (i) Agent will notify Elavon in the event that any of these representations and warranties becomes false or misleading during the term of this Agreement. 3.ELAVON AND MEMBER OBLIGATIONS Elavon and Member hereby provide Agent with a nonexclusive, nontransferable and royalty free limited license to access and use, during the Term of this Agreement, those certain specifications related to the Elavon Network necessary to allow Elavon Third Party Agent Agreement Schedule A FINAL (v. 3.13) Merchant or Agent to transmit the Merchant’s transactions to the Elavon Network in an acceptable format. The grant of such license shall be subject to Agent’s continual compliance with the terms and conditions of this Agreement. 4.ELAVON AND MEMBER REPRESENTATIONS AND WARRANTIES Elavon and Member represent and warrant to Agent at the time of execution and throughout the term of this Agreement the following: (a) Elavon and Member are validly existing entities organized and licensed in their own right or through their affiliates and agents to do business in all jurisdictions in which they operate; and (b) Elavon and Member, and each person signing this Agreement on Elavon’s or Member’s behalf, have the power to execute and perform the Agreement and, further, the signing and performing in accordance with the Agreement will not violate any law, or conflict with any other agreement to which Elavon or Member is subject. THIRD PARTY AGENT AGREEMENT – EXHIBIT 1 AGENT PRODUCTS AND/OR SERVICES Elavon Network Products and/or Services 1._________________________________________________________________ 2.__________________________________________________________________ 3.__________________________________________________________________ 4.__________________________________________________________________ 5.__________________________________________________________________ Foreign Network Products and/or Services 1._________________________________________________________________ 2.__________________________________________________________________ 3.__________________________________________________________________ 4.__________________________________________________________________ 5.__________________________________________________________________ Other Products and/or Services 1._________________________________________________________________ 2.__________________________________________________________________ 3.__________________________________________________________________ 4.__________________________________________________________________ 5.__________________________________________________________________ Payment Processing Application Elavon Third Party Agent Agreement Exhibit 2 FINAL (v. 5.14) THIRD PARTY AGENT AGREEMENT – EXHIBIT 2 Fees: TPA fees apply per this Schedule: Registration/ Renewal: Region Registration Fee Renewal Fee Visa U.S. TPS $1000.00 Merchant Servicer $0.00 ESO $1000.00 TPS $1000.00 MS $0.00 ESO $1000.00 Visa Canada TPS $1000.00 MS $0.00 ESO $1000.00 TPS $1000.00 MS $0.00 ESO $1000.00 MasterCard U.S. $5000.00 First Member Registration $500.00 Subsequent Member Registration $5000.00 First Member Registration $500.00 Subsequent Member Registration MasterCard Canada $5000.00 First Member Registration $500.00 Subsequent Member Registration $5000.00 First Member Registration $500.00 Subsequent Member Registration Required Insurance Coverage: 1.Commercial general liability and property damage insurance with combined bodily injury and property damage limits of at least One Million Dollars ($1,000,000) combined single limit for bodily injury, death, property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage, naming Elavon as an additional insured; 2.Network Risk/Privacy Liability Insurance covering liability for loss or damage due to network risks including but not limited to data breaches, unauthorized access or use of any data or systems, wrongful disclosure, failure to safeguard such data or systems, identity theft, invasion of privacy, damage/loss/theft of data, and any other unauthorized access or use (including breach of privacy, virus transmission, or denial of service). Coverage shall include expenses such as notification costs, restoration of data and regulatory costs. Coverage shall be maintained with a minimum limit per event of Five Million United States Dollars (US$5,000,000) and in the annual aggregate. The retroactive coverage date shall be no later than the Effective Date. Such insurance shall be maintained in force at all times during the term of the agreement and for a period of three (3) years thereafter for services completed during the term of the agreement. Elavon shall be given at least 30 days’ notice of the cancellation or expiration of the aforementioned insurance for any reason. 3.Errors and Omissions Insurance or comparable coverage of, at the least, claims based and damages arising out of or relating to Agent’s employees’ negligence, omissions, errors, or similar malfeasance of Agent’s personnel. Required coverage shall be commensurate with the volume of transactions (calculated by dollar value) sent by Agent to Elavon for processing in accordance with the table set forth below: Annual (Monthly) Volume Minimum E&O Insurance coverage Requirements Tier 1 <$50M (<$4.167M) $1,000,000 Tier 2 <$125M (<$10.417M) $2,000,000 Tier 3 <$250M (<$20.833M) $3,000,000 Tier 4 >$250M (>$20.833M) $5,000,000 Lloyd's Certificate This lnsu ranee is effected with certain Underwriters at Lloyd's, London. This Certificate is issued in acc ordance with the limited authorization granted to the Correspondent by certain Underwriters at Lloyd's , London whose syndicate numbers and the proportions underwritten by them can be ascertained fr om the office of the said Correspondent (such Underwriters being hereinafter called "Underwriters") and in consideration o f the premium specified herein, Underwriters hereby bind themselves severally and n ot j ointly, each for his o wn part and not one for another , their Executor s and Administrators . The A ss ured is requested to read this Certificate, and if it is not correct, return it immediately to the Correspondent for appropriate alteration. All inquiries regarding this Certificate should be addressed t o the following Correspond ent: SLC-3 (USA) NMA 2868 (24/0812000 UNDERWRIT I NG London Underwriting Centre, 3 Minster Co urt, Mincin g Lane, London, EC 3R 7DD F o1m approved by Lloy d 's Underwriters ' Non-Marine Association Limited ASCENT" CERTIFICATE ATIACHING TO AND FORMING PART OF Ascent CyberPro US v2.2 UNDER W R I TING CERTIFI CATE NO. ASD150001910 T his Insurance is effected with Certain Underwriters at Lloyd's , London under Binding Authority UMR: B1150SOL08 3150i DECLARATIONS NAMED INSURED ADDRESS County of Oakland a Michigan Municipal & Constitutional Corporation 2100 Pontiac Lake Road , Waterford, Ml 48328-0471 2 POLIC Y PERI OD FROM : September 1, 2015 TO: September 1, 2016 (both days at 12.01a.m . Local Standard Time at the address shown in Item 1) 3 POLICY LIMITS OF LIABILITY AND COVERAGES PURCHASED You have purchased some or all of the following Insuring Modules. Only those Insuring Module(s) that specify a Limit of Liability below have been purchased. If an Insuring Module has not been purchased that portion of this policy is not applicable . 3(A) LIMIT OF LIABILITY (1) INSURING MODULE 1: SECURITY AND PRIVACY LIABILITY USD 5,000,000 Each claim and USD 5,000 ,000 in the aggregate including claims expenses (2) INSURING MODULE 2: MULTIMEDIA AND INTELLECTUAL PROPERTY LIABILITY USO 5,000 ,000 Each claim and USO 5,000 ,000 in the aggregate including claim s expenses (3) INSURING MODULE 3: TECHNOLOGY SERVICES USO N/A Each claim and USON/A in the aggregate including claims expenses (4) INSURING MODULE 4: MISCELLANEOUS PROFESSIONAL SERVICES USO NIA Each claim and USO N/A in the aggregate including claims expenses (5) INSURING MODULE 5: NETWORK INTERRUPTION AND RECOVERY USO 5,000 ,000 Each claim and USO 5,000,000 in the aggregate (6) INSURING MODULE 6: EVENT SUPPORT EXPENSES USO 5,000 ,000 Each claim and USO 5,000,000 in the aggregate (7) INSURING MODULE 7: PRIVACY REGULATORY DEFENSE AND PENAL TIES USD 5,000 ,000 Each claim and in USD 5,000 ,000 the aggregate including claims expenses (8) INSURING MODULE 8. NETWORK EXTORTION USO 5,000,000 Each claim and USD 5,000 ,000 in the aggregate (9) INSURING MODULE g· ELECTRONIC THEFT, COMPUTER FRAUD AND TELECOMMUNICATIONS FRAUD USD 1,000,000 Each claim and in the aggregate (1 OJ INSURING MODULE 10: REPUTATIONAL DAMAGE USD 5,000 ,000 Each claim and in the aggregate 3(B) TOTAL LIMIT OF LIABILITY UNDER THE POLICY USO 5,000 ,000 is the Total Limit of Liability under the policy ASCENT" CERTIFICATE ATIACHING TO AND FORMING PART OF Ascent CyberPro US v2.2 UNDERWR I TING 3 (CJ Notwithstanding the aggregate Lim rt of Liability under each Insuring Module as set forth in item 3(A) above, all payments made under the policy, regardless of the number of lnsunng Modules that apply , will reduce the total Limit of Liability as set forth in item 3(B) above . In no event will Underwriters pay more than the total Limit of Liability as set forth in item 3(B) above. 4 DEDUCTIBLE and WAITING PERIOD 5 6 (1) INSURING MODULE 1: SECURITY AND PRIVACY LIABILITY USO 100 ,000 Each and every claim including claims expenses (2) INSURING MODULE 2: MULTIMEDIA AND INTELLECTUAL PROPERTY LIABILITY USO 100 ,000 Each and every claim including claims expenses (3) INSURING MODULE 3. TECHNOLOGY SERVICES USO NIA Each and every claim including claims expenses (4) INSURING MODULE 4· MISCELLANEOUS PROFESSIONAL SERVICES USO NIA Each and every claim including claims expenses (5) INSURING MODULE 5: NETWORK INTERRUPTION AND RECOVERY Network Expenditure Loss of Business Income Coverage USO 100,000 8 hours (6) INSURING MODULE 6: EVENT SUPPORT EXPENSES USO 100 ,000 Each claim and in the aggregate Each claim waiting period (7) INSURING MODULE 7: PRIVACY REGULATORY DEFENSE AND PENALTIES USO 100 ,000 Each and every claim including claims expenses (8) INSURING MODULE 8: NETWORK EXTORTION USO 100 ,000 Each and every claim (9) INSURING MODULE 9: ELECTRONIC THEFT , COMPUTER FRAUD AND TELECOMMUNICATIONS FRAUD USO 100 ,000 Each and every claim (10) INSURING MODULE 10: REPUTATIONAL DAMAGE USO 100 ,000 Each and every claim RETROACTIVE DATE : GROSS PREMIUM POLIC Y FEE TOTAL PAYABLE September 1, 2015 USO 87 ,525 .00 USO 500 .00 USO 88 ,025 .00 $87,525 .00 Premium $2 ,188.13 SL Tax $59.00 Policy Fee $500 .00 Supplier Fee Total : $90 ,272 .13 7 NOTICE OF CLAIM : Richard Kissel , Esq., Kissel Hirsch & Wilmer LLP, 580 Whrte Plains Road , Tarrytown , NY 10591 and in respect of Privacy Breaches and/or Cyber Extortion Events: IDT911, Breach Hotline: 1-800-493-0943 8 SERVICE OF SUIT : Sedgwick, Deter!, Moran & Arnold , 3 Park Plaza, 17th Floor, Irvine , CA 92614-854 9 CHOICE OF LAW: New York 10 TERRITORY: Worldwide ASCENT" CERTIFICATE ATIACHING TO AND FORMING PART OF Ascent CyberPro US v2.2 UNDERWR I TING 11 MISCELLANEOUS Not Applicable PROFESSIONAL SERVICES FOR WHICH COVERAGE HAS BEEN PURCHASED FORMS AND ENDOR SEMENTS ATTACHED HERETO SECURITY DATED IN LONDON Ascent CyberPro US v2.2 NMA 1256 Nuclear Incident Exclusion (USA) NMA 1477 Radioactive Contamination Clause (USA) LSW1001 Several Liability Notice (Insurance) LSW585 Premium Payment Warranty 45 Days Payment Card Industry Fines or Penalties Endorsement Post-Binding Subjectivity Condition Endorsement This contract of insurance has been effected 100% by certain Underwriters at Lloyd's of London as follows Syndicate AML 2001 at Lloyd's Syndicate ARK 4020 at Lloyd's Syndicate PEM 4000 at Lloyd's Syndicate FOY 435 at Lloyd's Consortium ANV 9209* at Lloyd's Syndicate NAV 1221 at Lloyd's 38.0953% 19.0476% 14.2857% 14.2857% 9.5238% 4.7619% * undervvriting on behalf of Lloyd 's Syndicates ANV 1861 (75%) and ANV 5820 (25%) September 9, 2015 Authorised representative of Ascent Underwriting LLP IDT911 RISK MANAGEMENT SERVICES Please visit www .asce ntu nderwriti nq .breach response.co m and refer to the back of this certificate for details of how to activate and access IDT911 Risk Manageme nt Services NO FLAT CANCELLATION This insurance has been placed with an insurer that is not licensed by the State of Michigan, in case of insolvency , payment of claims may not be guaranteed. ***This Stamp is Red CERTIF1CATE PROVISIONS 1. Signature Required. This Certificate shall not be valid unless signed by the Correspondent on the attached Declaration Page. 2. Correspondent Not Insurer. The Correspondent is not an Insurer hereunder and neither is nor shall be liable tor any loss or claim whatsoever. The Insurers hereunder are those Underwriters at Lloyd's, London whose syndicate numbers can be ascertained as hereinbefore set forth. As used in this Certificate "Underwriters" shall be deemed to include incorporated as well as unincorporated persons or entities that are Underwriters at Lloyd's, London. 3. Cancellation. If this Certificate provides for cancellation and this Certificate is cancelled after the inception date, earned premium must be paid for the time the insurance has been in force. 4. Service of Suit. It is agreed that in the event of the failure of Underwriters to pay any amount claimed to be due hereunder, Underwriters, at the request of the Assured, vvill submit to the jurisdiction of a Court of competent jurisdiction vvithin the United States. Nothing in this Clause constitutes or should be understood to constitute a waiver of Underwriters' rights to commence an action in any Court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another Court as permitted by the laws of the United States or of any State in the United States. It is further agreed that service of process in such suit may be made upon the firm or person named in item 11 of the attached Declaration Page, and that in any suit instituted against any one of them upon this contract, Underwriters vvill abide by the final decision of such Court or of any Appellate Court in the event of an appeal. The above-named are authorized and directed to accept service of process on behalf of Underwriters in any such suit and/or upon request of the Assured to give a written undertaking to the Assured that they vvill enter a general appearance upon Underwriters' behalf in the event such a suit shall be instituted. Further, pursuant to any statute of any state, teni.tory or district of the United States which makes provision therefor, Underwriters hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Assured or any beneficiary hereunder arising out of this contract of insurance, and hereby designate the above-mentioned as the person to whom the said officer is authorized to mail such process or a true copy thereof 5. Assignment This Certificate shall not be assigned either in whole or in part vvithout the written consent of the Correspondent endorsed hereon. 6. Attached Conditions Incorporated. Tiris Certificate is made and accepted subject to all the provisions, conditions and warranties set forth herein, attached or endorsed, all of which are to be considered as incorporated herein. Important Notice to the Insured This Certificate is a leg al contract Please re ad it carefully to ensure that it is in acco rdance with your requ irements and that you understand its terms and conditions. The insurance broker or agent or other intermediary who arranged this Insurance should be contacted immediately if any correction i s necessary. Regulatory Status This insurance is underwritten by Ascent Underwriting of Su ite 2/5, London Underwriting Centre, 3 Minster Court, Mincing Lane, London , EC3R 700 on behalf of Underwriters at Ll oyd's, Lond on. Ascent Underwriting is autho rised and regulated by the Financial Conduct Authority (FCA). Ascent Underwriting's FCA Registration Number is 605637. These details may be checked on the Financial Conduct Authority Register website at http://www.fca.org. uk/fi rms/syst ems-reporting!reg iste r or by contacting the Financial Conduct Authority on Tel: 0800 111 6768 (o r from outside the United Kingdom on Tel: +44 20 7066 1000). Complaints Procedure It is always our intention to provide a first class standard of service. However, if you have any cause for complaint or you wish to make any inquiry regarding this Insurance you should, in the first instance, contact the Insurance Broker or Agent or other intermediary who arranged this Insurance for you. You can also contact us directly at complaints@ascentunderwriting.com or write to us at: Ascent Underwriting Suite 2/5 London Underwriting Centre 3 Mincing Lane London EC3R 700 United Kingdom If you are not satisfied with the way a complaint has been dealt with you may ask Lloyd 's to review you r case w ithout prejudice to your rights at law. The add res s is: Complaints Team Llo yd's One Lime Street London EC3M 7HA United Kingdom Em ail: compla ints@ llo yds .co m Telephone: +44 (0) 20 7327 5693 Fax: +44 (0) 20 7327 5225 NUCLEAR INCIDENT EXCLUSION CLAUSE-LIABILITY-DIRECT (BROAD) (U.S.A.) For attachment to insurances of the following classifications in the U.S.A., its Territories and Possessions, Puerto Rico and the Canal Zone: owners, Landlords and Tenants Liability, Contractual Liability, Elevator Liability, owners or Contractors (including railroad) Protective Liability, Manufacturers and Contractors Liability, Product Liability, Professional and Malpractice Liability, Storekeepers Liability, Garage Liability, Automobile Liability (including Massachusetts Motor Vehicle or Garage Liability). not being insurances of the classifications to which the Nuclear Incident Exclusion Clause-Liability-Direct (Limited) applies. This Policy* does not apply: I. Under any Liability Coverage, to injury, sickness, disease, death or destruction: (a) with respect to which an insured under the Policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or (b) resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this Policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United states of America, or any agency thereof, with any person or organization. II. Under any Medical Payments Coverage, or under any Supplementary Payments Provision relating to immediate medical or surgical relief, to expenses incurred with respect to bodily injury, sickness, disease or death resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization. Ill. Under any Liability Coverage, to injury, sickness, disease, death or destruction resulting from the hazardous properties of nuclear material, if: (a) the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom; (b) the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or (c) the injury, sickness, disease, death or destruction arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this exclusion (c) applies only to injury to or destruction of property at such nuclear facility. IV. As used in this endorsement: "hazardous properties" include radioactive, toxic or explosive properties; "nuclear material" means source material, special nuclear material or by-product material; "source material", "special nuclear material", and "by- product material" have the meanings given them in the Atomic Energy Act 1954 or in any law amendatory thereof; "spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; "waste" means any waste material (1) containing by-product material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (a) or (b) thereof; "nuclear facility" means: (a) any nuclear reactor, (b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste, (c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235, (d) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material. With respect to injury to or destruction of property, the word "injury" or "destruction" includes all forms of radioactive contamination of property. It is understood and agreed that, except as specifically provided in the foregoing to the contrary, this clause is subject to the terms, exclusions, conditions and limitations of the Policy to which it is attached. *NOTE: As respects policies which afford liability coverages and other forms of coverage in addition, the words underlined should be amended to designate the liability coverage to which this clause is to apply. 17/3/60 NMA1256 RADIOACTIVE CONTAMINATION EXCLUSION CLAUSE-LIABILITY-DIRECT (U.S.A.) For attachment (in addition to the appropriate Nuclear Incident Exclusion Clause-Liability-Direct) to liability insurances affording worldwide coverage. In relation to liability arising outside the U.S.A., its Territories or Possessions, Puerto Rico or the Canal Zone, this Policy does not cover any liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. 13/2/64 NMA1477 SEVERAL LIABILITY NOTICE LSW 1001 (INSURANCE) The subscribing insurers' obligations under contracts of insurance to which they subscribe are several and not joint and are limited solely to the extent of their individual subscriptions. The subscribing insurers are not responsible for the subscription of any co-subscribing insurer who for any reason does not satisfy all or part of its obligations. PREMIUM PAYMENT WARRANTY IT IS WARRANTED that all Premiums due to the Underwriters under this Policy are paid within 45 days from Inception. Non-receipt by Underwriters of such premiums by Midnight on the Premium Due date shall render this Insurance Policy void with effect from Inception. LSW585(11/93) SMALL ADDITIONAL OR RETURN PREMIUMS CLAUSE (U.S.A.) NOTWITHSTANDING anything to the contrary contained herein and in consideration of the premium for which this Insurance is written, it is understood and agreed that whenever an additional or return premium of $2 or less becomes due from or to the Assured on account of the adjustment of a deposit premium, or of an alteration in coverage or rate during the term or for any other reason, the collection of such premium from the Assured will be waived or the return of such premium to the Assured will not be made, as the case may be. NMA1168 SPECIFIC PROVISIONS FOR ASSURED'S DOMICILED IN CALIFORNIA ONLY NOTICE: 1. THE INSURAN C E PO LI CY THAT YO U HAVE PUR CHAS ED IS BEi NG ISSUED BY AN INSURER THAT IS NOT LI C EN S ED BY THE ST ATE O F C ALIF O RNI A. THE S E COMPANIES A RE CALLED "NONADMITTED" OR "S URPLUS LINE " IN SURERS . 2. THE INSURER IS NOT S UBJECT TO THE FINAN CIAL S O LVENCY RE GULATI O N AND ENFO RCEMENT TH AT A PPLY TO CALIFO RNIA LI C EN S ED IN SURERS. 3. THE INS URER DO ES NOT PARTI C IPATE IN ANY O F THE INSURANC E G UA RANTEE FUNDS CREATED BY CALIF ORNIA LAW. THEREFORE , THES E FUNDS WILL NOT PAY YOUR C LAIM S OR PR O TE CT YOUR ASSET S IF THE IN S URER BECO ME S IN SOLVENT AND IS UNABLE TO MAKE PAYMENTS AS PR O MI S ED. 4 . THE INSURER SH O ULD BE LI C ENSED EITHER AS A FOREI GN INSURER IN AN OTHER STATE IN THE UNITED STATES O R AS A NO N-UNITED ST ATES (ALIEN ) INSURER. YOU S HO ULD AS K Q UES TI ONS OF YOUR INSURANC E AG ENT, BR O KER , O R "SU RPLU S LINE " BR O KER O R CONTACT THE CALIF ORNI A DEPA RTMENT O F INSURA NCE AT THE FOLLOWING TOLL-FREE TELEPHO NE NUMBER 1-8 00-92 7-4357 . ASK WHETHER OR NOT THE INS URER IS LI C EN S ED AS A FO REI GN OR NON- UNITED STATES (ALIEN ) INSURER A ND FO R ADDITI O NAL INFO RM A TI O N A BOUT THE INSURER. YO U MAY ALSO CONTACT THE NA IC 'S INTERNET W EB SITE A T WWW.NAIC.ORG . 5 . FOREI GN INS URERS SH O ULD BE LI CENS ED BY A STATE IN THE UNITED STATES AND YO U MAY CONTACT THAT S TA TE 'S DEPARTMENT O F INSURAN C E TO O BTAIN MO RE INFO RM A TIO N A BO UT THAT IN S URER. 6. FOR NO N-UNITED STATE S (ALIEN) INSURERS , THE INSURER SH O ULD BE LI CENSED BY A COUNTRY O UTS IDE O F THE UNITED STATES AND SH O ULD BE O N THE NA IC'S INTERN ATIO NAL INSURERS DEPA RTMENT (llD) LISTING OF APPR OVED NO NADMITTED NON-UNITED STATES INSURERS . AS K YO UR AG ENT, BR O KER , O R "SURPLUS LINE " BR O KER T O OBTA IN MO RE INFORM ATION A BO UT THAT IN S URER. 7. CALIF ORNIA MA INTAINS A LIST OF A PPR OVED SURPLUS LINE INSURERS. ASK YOUR AG ENT OR BR OKER IF THE INSURER IS ON TH AT LI S T , O R VIEW THAT LI ST A T THE INTERNET W EB S ITE O F THE CALIFO RNI A DEPARTMENT O F INSURA NCE: WWW.I NSURANCE.CA.GOV . 8. IF YOU , AS THE APPLI CANT, RE Q UIRED THAT THE INSURANCE PO LI CY YO U HAVE PUR C HASED BE BO UND IMMEDI ATEL Y, EITHER BE CAUSE EXI STIN G COVER AGE WAS GOING TO LA PSE WITHIN TWO BU SINES S DA YS OR BECAUS E Y OU WERE REQUIRED TO HAVE COVERAGE W ITHIN TWO BUSINESS DAY S, AND YO U DID NOT RE CEI V E THI S DIS CL OSURE FORM AND A REQ UEST FO R YO UR SI G NATURE UNTIL AFTER COVERAG E BE CAME EFFE CTIVE , YO U HAV E THE RI G HT TO CAN C EL THIS PO LI CY WITHIN FIVE DAYS O F REC EI V IN G THIS DI SCLOSURE. IF YOU CAN C EL COVERAG E , THE PREMIUM WILL BE PR O RA TED A ND A NY BR O KER 'S FEE CHARG ED FO R THI S INSURANC E WILL BE RETURNED TO YO U 07111 LSW1147D SPECIFIC PROVISIONS FOR ASSUREDS DOMICILED IN ILLINOIS ONLY NOTICE TO POLICYHOLDER: THIS CONTRACT IS ISSUED, PURSUANT TO SECTION 445 OF THE ILLINOIS INSURANCE CODE, BY AN INSURER NOT AUTHORIZED AND LICENSED TO TRANSACT BUSINESS IN ILLINOIS AND AS SUCH IS NOT COVERED BY THE ILLINOIS INSURANCE GUARANTY FUND. SPECIFIC PROVISIONS FOR ASSUREDS DOMICILED IN WASHINGTON ONLY It is understood and agreed that XXlll. CHOICE OF LAW is deleted and replaced with the following; The interpretation of this policy and any disputes involving this policy shall be resolved applying the law in Washington. All other terms and conditions remain unchanged. SPECIFIC PROVISIONS FOR ASSUREDS DOMICILED IN NEW YORK ONLY THE INSURER(S) NAMED HEREIN IS (ARE) NOT LICENSED BY THE STATE OF NEW YORK, NOT SUBJECT TO ITS SUPERVISION. AND IN THE EVENT OF THE INSOLVENCY OF THE INSURER(S), NOT PROTECTED BY THE NEW YORK STATE SECURITY FUNDS. THE POLICY MAY NOT BE SUBJECT TO ALL OF THE REGULATIONS OF THE DEPARTMENT OF FINANCIAL SERVICES PERTAINING TO POLICY FORMS. LMA9067 ASCENT " f ftlDT 911 UNDERWR IT I NG DA TA BREACH SERVICES THROUGH IDT911 We have pa rtn ered with IDe ntity Theft 911 to provide our policyholde rs bo th proactive and post-breach services to help minimize the occurrence of a data breach , and provide expert assistance if one occurs . PROACTIVE BREACH PREPARATION SERVICES As an educational resource , our proactive breach prepare dness site can pro vide you with the toots you need to better protect your sensitive data and teach you how to respond appropriately in the event of a data breach : Notification Laws and Regulations -Keep on top of regulatory requirements and legislation that affects how you do business. Tools and guides to help understand state laws and federal statutes Inc idence Response Plan Template -Establish procedures for handling a breach and working with Identity Theft 911 to minimize the impact and potential fallout Educational Resources -Data protec!Jon tips , breach scenarios, articles and best practices To access the breach preparedness site: www .ascentu n derwriti ng .breach response .com Log in initially using the following creden!Jals; Username : Ascentunderwriting Password : Ascen tunderwriting 1 You will be prompted to create your own credentials . Please enter the policy number as shown on the certificate , and other requested infonmation to create your own account BREACH RESPONSE SERVICES At the first sign of a breach , please ca ll IDentity Theft 911 Breach Hotli ne : 1-800-493-0943 IDen ti ty Theft 911 's experts can he lp you qu ickly develop a clear breach response strateg y and incident management plan : Brea ch Counseling -Help detenmine whether a breach has occurred and assess the severity of the incident Cris is Management -Time-saving professional service in handling a breach Notification Assistance -Help in preparing notification letters that comply with regulatory requirements Remed iation Services -Recommendations on remediation services for impacted individuals Media Relations Consulting -Public relations assistance to help restore your business ' reputation Legal Support -Documentation of steps taken and remediation services provided U N DFRWRI TI NG Cyber Pro Policy You have purchased some or all of the Insuring Modules contained within this policy. The Insuring Modules purchased are what we cover. Please refer to the Declarations , which show the Insuring Module(s) you have purchased. If an Insuring Module(s) has not been purchased , that portion of this policy is not applicable and no coverage will be provided under that Insuring Module. lliiH Ascent US v2.2 2015 ASCENTUI UNDERWRI TIN G ASCENT CYBERPRO POLICY (USA) • I. WHAT WE COVER: INSURING MODULES INSURING MODULE 1: (SECURITY AND PRIVACY LIABILITY) We shall pay on your behalf damages and claims expenses that exceed your deductible as stated within item 4 of the Declarations, which you become legally obligated to pay as a result of any claim first made against you and notified by you to us in writing , in accordance with Section XI of this policy , during the policy period or any extended reporting period , if applicable , arising from an actual or alleged security and privacy wrongful act(s) for which you are legally liable provided that such act(s) occurred on or after the retroactive date. INSURING MODULE 2: (MULTIMEDIA AND INTELLECTUAL PROPERTY LIABILITY) We shall pay on your behalf damages and claims expenses that exceed your deductible as stated within item 4 of the Declarations , which you becom e legally obligated to pay as a result of any claim first made against you and notified by you to us in writing, in accordance with Section XI of this policy , during the policy period or any extended reporting period , if applicable, resulting from any actual or alleged multimedia and intellectual property wrongful act(s) arising during your multimedia activrties, provided that such act(s) occurred on or after the retroactive date . INSURING MODULE 3: (TECHNOLOGY SERVICES) We shall pay on your behalf damages and claims expenses that exceed your deductible as stated within item 4 of the Declarations, which you become legally obligated to pay as a result of any claim first made against you and notified by you to us in writing , in accordance with Section XI of this policy , during the policy period or any extended reporting period , if applicable , arising from an actual or alleged professional wrongful act(s), provided that such act(s) occurred on or after the retroactive date. INSURING MODULE 4: (MISCELLANEOUS PROFESSIONAL SERVICES) We shall pay on your behalf damages and claims expenses that exceed your deductible as stated within item 4 of the Declarations , which you become legally obligated to pay as a result of any claim first made against you and notified by you to us in writing, in accordance with Section XI of this policy , during the policy period or any extended reporting period , if applicable, arising from an actual or alleged professional wrongful act(s), provided that such act(s) occurred on or after the retroactive date . INSURING MODULE 5: (NETWORK INTERRUPTION AND RECOVERY) We shall indemnify you for network expenditure that exceed your deductible as stated within item 4 of the Declarations , and for loss of business income after expiration of the applicable waiting period as stated within item 4 of the Declarations , resulting from a network event sustained by you and notified by you to us in writing , in accordance with Section XI of this policy , during the policy period or any extended reporting period, if applicable , provided that such event(s) occurred on or after the retroactive date. INSURING MODULE 6: (EVENT SUPPORT EXPENSES) We shall indemnify you for event management costs, notification expenses , and support and credit monitoring expenses , that exceed your deductible as stated within item 4 of the Declarations, when such costs and expenses are incurred, following a security event, privacy event, social media event or breach of privacy regulations and notified by you to us in writing , in accordance with Section XI of this policy , during the policy period or any extended reporting period , if applicable , provided that such event(s) or breach( es) occurred on or after the retroactive date . INSURING MODULE 7: (PRIVACY REGULATORY DEFENSE AND PENALTIES) We shall pay on your behalf those amounts that exceed your deductible as stated within item 4 of the Declarations , which you are legally obligated to pay, including claims expenses, as a result of a civil regulatory action or investigation, including a regulatory compensatory award , civil penalty , or fines to the extent insurable by law, imposed by a federal , state , or governmental regulatory body against you and notified by you to us in writing , in accordance with Section XI of this policy , during the policy period or any extended reporting period, if applicable , as a result of a privacy event, security event, or breach of privacy regulations sustained by you , provided that such event(s) or breach( es ) occurred on or after the retroactive date . Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • INSURING MODULE 8: (NETWORK EXTORTION) We shall indemnify you for network extortion monies that exceed your deductible as stated within rtem 4 of the Declarations , when such monies are paid by you following a network extortion threat, to the extent insurable by law and notified by you to us in writing, in accordance with Section XI of this policy , during the policy period or any extended reporting period , if applicable, provided that such threat(s) occurred on or afterthe retroactive date . INSURING MODULE 9: (ELECTRONIC THEFT, COMPUTER FRAUD AND TELECOMMUNICATIONS FRAUD) We shall indemnify you for your monetary loss that exceeds your deductible as stated within item 4 of the Declarations sustained from electronic theft , computerfraud or telecommunications fraud , which occurs on your computer network and arises from a security event sustained by you and notified by you to us 1n writing, in accordance with Section XI of this policy, during the policy period or any extended reporting period , if applicable, provided that such event(s) occurred on or after the retroactive date. INSURING MODULE 10: (REPUTATIONAL DAMAGE) We shall indemnify you for reputational damage that exceed your deductible as stated within item 4 of the Declarations arising directly from a network event sustained by you and notified by you to us in writing, in accordance with Section XI of this policy, dunng the policy period or any extended reporting period , if applicable , provided that such network event occurred on or after the retroactive date. II . DEFENSE, SETTLEMENT, AND INVESTIGATION OF CLAIMS A. With respect to Insuring Modules 1, 2, 3, 4, and 7, we shall have the right and duty to defend any claim by a third party against you seeking payment under the terms of this policy, even if any of the allegations of the claim are groundless, false, or fraudulent , and subject to the Limit of Liability , exclusions, and other terms and conditions of this policy You shall seek our consent, which shall not be unreasonably withheld, prior to appointment of defense counsel. B. The Limit of Liability available to pay damages and as stated within item 3 of the Declarations shall be reduced, and may be completely exhausted, by payment of claims expenses or any other amounts covered under the policy. Damages , claims expenses, and any other amounts covered under this policy shall be applied against the deductible. C. We shall have the right to make any investigation we deem necessary including, without limitation, any investigation with respect to the application and statements made in the application and with respect to coverage. D With respect to Insuring Modules 1, 2, 3, 4, and 7, if you refuse to consent to any settlement or compromise recommended by us that is acceptable to the claimant and elect to contest the claim, our total liability for any damages , claims expenses, and other amounts covered under this policy shall not exceed: E. 1. The amount for which the claim could have been settled, less the remaining deductible, plus the claims expenses incurred up to the time of such refusal , and 2. Fifty percent (50%) of any damages, claims expenses, or other amounts covered under this policy incurred after the date such settlement or compromise was recommended to you. The remaining fifty percent (50%) of such damages, claims expenses, or other amounts covered under this policy are to be borne by you at your own risk and uninsured under this policy. or the unexhausted proportion of the applicable Limit of Liability, whichever is less It is further provided that we shall not be obligated to pay any dam ages, claims expenses, or any other amounts covered under this policy , or to undertake or continue defense of any suit or proceeding after the applicable Limit of Liability has been exhausted by payment of damages, claims expenses, or other amounts covered under this policy and that upon such payment, we shall have the right to withdraw from the further defense thereof by tendering control of said defense to you . Ascent US v2 . 220 15 A SCENT UI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • Ill. LIMIT OF LIABILIT Y A. The Limit of Liability set forth in item 3(A) of the Declarations shall be the limit of our liability for each claim and in the aggregate arising under each Insuring Module , including claims expenses , where applicable . B. The Limits of Liability set forth in item 3(B) of the Declarations shall be our total Limit of Liability under this policy regardless of the number of Insuring Modules that apply , including claims expenses where applicable. C. Notwithstanding the aggregate Limit of Liability under each Insuring Module as set forth in item 3(A) of the Declarations, all payments made under this policy , regardless of the number of Insuring Modules that apply , \Mii reduce the total Limit of Liability set forth in item 3(B) of the Declarations. In no event will we pay more than the total Limit of Liability as set forth in item 3(B) of the Declarations. D All claims arising out of the same , related , or continuing acts , facts , or circumstances , without regard to the number of insureds , claims , or claimants shall be considered a single claim and only one Limit of Liability , as set forth 1n item 3(A) of the Declarations , will apply. All such claims shall be deemed to have been made at the time of the first such claim . E. In the event that a claim is notified by you , in accordance with Section XI of this policy , and attaches to more than one Insuring Module , only one Limit of Liability as set forth in item 3(A) of the Declarations shall apply . In such event , at most, only the highest of the applicable Limits of Liability shall apply to such claim . We have the sole discretion to allocate claims paid , if any , against the appropriate applicable Limit of Liability. With regard to such claim , in no event shall the amount paid by us under any Insuring Module be greater than the Limit of Liability set forth in item 3(A) of the Declarations. F. The Limits of liability for the extended reporting period, if applicable , shall be part of and not in addition to the Limit of Liability for the policy period . IV. DEDUCTIBLE A. The deductible amount set forth in item 4 of the Declarations shall apply to each and every claim . The deductible shall be satisfied by your payment of amounts covered under the policy. If a claim attaches to more than one Insuring Module, only the highest deductible applies B. Your payment of the applicable deductible is a condition precedent to the payment by us of any amounts covered under this policy and we shall only be liable for the amount in excess of deductible, not to exceed our total Limit of Liability as stated in item 3 of the Declarations. You shall make direct payments within the deductible to the appropriate parties . C. All claims arising out of the same , related , or continuing acts , facts , or circumstances , without regard to the number of insureds , claims , or claimants shall be considered a single claim and only one deductible shall apply . All such claims shall be deemed to have been made at the time of the first such claim. D. We will not indemnify you in respect of loss of business income incurred during the time of the waiting period listed in item 4 of the Declarations. V. TERRITORIAL LIMITS This policy applies to any wrongfi.11 acts , insured events, breaches or threats detailed under the relevant Insuring Modules , committed, alleged to have been committed or occurring anywhere in the world unless otherwise stated in item 10 of the Declarations . Ascent US v2 . 22015 A SCENT UI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • VI . INSURED The insured means: A. The legal entity(s) shown in item 1 of the Declarations; B. Any subsidiary of the legal entity(s) shown in item 1 of the Declarations, but only with respect to wrongful acts , insured events, breaches or threats as detailed under the relevant Insuring Module that occur while it is a subsidiary and otherwise covered by this policy ; C. Any past, present, or future officer, director, trustee , or employee of any party described in VI (A) or (B) above , but only while acting within the scope of their duties as such; D. In the event that any party described in VI (A) or (B) above is a partnership , limited liability partnership , or limited liability company , then any general or managing partner , principal, stockholder, or owner thereof, but only while acting within the scope of their duties as such; E. Any agent or independent contractor, including distributors , licensees , and sub-licensees , but only while acting on behalf of, at the direction of, or under the control of any party described in VI (A) or (B) above; and F. Any entity required by contract to be named an insured under this policy and to whom we consent 1n writing , but only for the acts of any such entity as provided by the contract, and as detailed under the relevant Insuring Module VII. DEFINITIONS A. Application means all application forms , including any attachments thereto, and all other information and materials submitted to us by you or on your behalf in connection with the underwriting of this policy All such applications , attachments, information, and materials are deemed attached to and incorporated into this policy. B. Bodily injury means physical injury, sickness , disease , death, mental anguish , mental injury, shock, humiliation or emotional distress sustained by any person. C. Breach of contract means breach of a written contract(s) with a client to perform technology services because of 1. The technology services being negligently performed or containing a material defect; 2. The technology services failing to meet any statutory term concerning quality , safety, or fitness for a particular express purpose , or failing to meet an implied duty to exercise that degree of care or skill consistent with applicable industry standards, or 3. Breach of any hold harmless or indemnity provision regarding infringement of intellectual property rights, breach of security , or the confidentiality of information D. Claim means : A written demand for monetary damages or non-monetary relief, a request for a tolling agreement, the service of a civil suit , or institution of arbitration proceedings received by you seeking monetary damages or the threat or initiation of a suit and/or proceeding seeking a temporary restraining order or a preliminary or permanent 1niunction ; 2. A formal civil administrative proceeding or regulatory action or investigation to the extent covered by Insuring Module 7; 3. A network event ; 4. Notification to us of the need to incur event management costs, notification expenses or support and credit monitoring expenses; or 5. A network extortion threat ; 6. Notification to us that electronic theft, computer fraud and/or telecommunications fraud has occurred . Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • E. Claims expenses means: 1. Reasonable and necessary legal costs and expenses incurred with our consent and charged by an attorney(s) approved by us to defend a claim ; 2. All other reasonable and necessary fees, costs, and expenses resulting from the investigation, adjustment , defense, and appeal of a claim , if incurred by us , or by you with our written consent ; or 3. With respect to Insuring Modules 1 and 7, your reasonable and necessary legal costs and expenses incurred with our consent in the defense of any civil administrative proceeding or regulatory action as a result of a privacy event, security event , or breach of privacy regulations by you or on your behalf by someone for whom you are legally responsible . Claims expenses does not include any salary, overhead , or other charges incurred by you for any time spent in cooperating in the defense and investigation of any claim or circumstance which might lead to a claim notified under this policy . F. Computer fraud means an intentional , unauthorized or fraudulent entry of data including when such entry is made via the internet or another computer network by any person or persons including an employee that results in any or all of the following; 1. Your money, your securities or your other asset being transferred , disbursed , paid , delivered , altered, corrupted or lost. 2. Money, securities or other asset of your customers or clients being disbursed , paid , delivered , altered , corrupted, or lost from an account that is in your trust or control. . 3. Creation of an unauthorized or fictitious account in your name G. Computer network(s) means interconnected electronic , wireless , web , or similar systems (including all hardware and software) used to share or process data or information in an analog , digital, electronic or wireless format including, but not limited to , computer programs , electronic data, operating systems , servers , media libraries , associated input and output devices , mobile devices, networking equipment, telecommunications system, websites, extranets, off line storage facilities (to the extent that they hold electronic data), and electronic backup equipment With the exception of Insuring Modules 5, 9 and 10 computer network(s) also means the use of computing resources that are delivered as a service over a network or the internet (commonly kno\Ml as 'cloud computing '). H. Computer virus means a program that possesses the ability to create replicas of itself (commonly known as "auto- reproduction ' program) within other programs or operating system areas , or which is capabl e of spreading copies of itself wholly or partly to other computer network(s). I. Damages means a monetary judgment , consumer redress fund, award , settlement, or punitive damages to the extent insurable under the law pursuant to which this policy 1s construed Damages does not include · 1. Your future profits or royalties , restitution, or disgorgement of your profits ; 2. The cost to comply with orders granting injunctive or non-monetary relief, including specific performance, or any agreement to provide such relief ; 3 Loss of your fees or profits , return or offset of your fees or charges , or your commissions or royalties provided or contracted to be provided; 4. Taxes , fines , penalties, or sanctions; however, this does not include civil fines or penalties to the extent insurable by law or to the extent otherwise covered under Insuring Module 7 5. Any damages that are a multiple of compensatory damages, 6. Any amount which you are not financially or legally obligated to pay; 7. Disgorgement or return of any remuneration or financial advantage to which you were not legally entitled ; Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • 8. Monetary judgments, awards, or settlements which are uninsurable under the law pursuant to which this policy 1s construed, 9. Past, present and/or future license fees of any kind; or 10. Liquidated damages . J. Data means any machine readable information, including ready for use programs or electronic data, irrespective of the way it 1s used and rendered including , but not limited to , text or digital media . K. Deductible means the amount specified in item 4 of the Declarations. L. Delivered programs means programs , applications, and software where the development stage has been finalized, and are ready for operational use, having passed all test-runs and been proven successful in a live environment. M. Denial of service means an unauthorized or malicious attempt or attack on or via a computer network to make a computer network unavailable to its intended users. N. Electronic theft means; 1. The transfer , alteration , corruption , or theft of your intangible asset 2. Disclosure , duplication , or theft of your intangible asset(s) to a person(s) or entities(s) who are not authorized to receive it. 0 . Employee(s) means any individual in your service , including any part-time, seasonal , and temporary workers or any individual who 1s working on your behalf, or at your direction , and under your direct control Employee does not include any of your partners or directors. P. Event management costs means those reasonable and necessary fees you incur with our consent and which are approved by us for the employment of a public relations consultant if you reasonably consider that such appointment is needed in order to avert or mitigate any material damage to any of your brands following an actual or alleged security event, privacy event breach of privacy regulations, or a social media event. Q. Extended reporting period means the period of time after the end of the policy period for reporting claims as provided 1n Section X of this policy . R. Hardware means any and all physical components of a computer system . S Human error means an accidental action or operating error , by your employee(s) T. Intangible Asset means non-public infonnation or non-tangible property , which is owned by you and is held within your computer network but has no physical substance including trade secrets, copyrights , patents, trademarks , data or other information when the disclosure , theft, corruption or copying of such would cause you a monetary loss or give a competitor commercial advantage to which they would not have previously had . U. Loss of business income means the net income (net profit or loss before income taxes) that you would have earned had no network event occurred. v W. X. Loss of business income does not include reputational damage, electronic theft or telecommunications fraud. Malicious code means software designed to in1iltrate , disrupt , or damage a computer network or gather sensitive information, all without the owner's infonned consent , by a variety of forms including, but not limited to, Trojan horses , spyware, malware, dishonest adware and crimeware. Miscellaneous professional services means your business services , which are performed for and on behalf of your clients or in the course of your business and limited to those services stated in Item 11 of the Declarations . Money means a medium of exchange in current use and authorized or adopted by a domestic or foreign government and includes currency , coins , banknotes, bullions, or registered checks . Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • Y. Multimedia means the release of any content in a physical or electronic format , including, internet content, newspapers , newsletters , magazines , books, brochures , images or other types of publications and advertising materials . Z. Multimedia and intellectual property wrongful act means: Defamation including, but not limited to , disparagement or harm to the reputation or character of any person or organization , libel , slander , product disparagement , trade libel , or infliction of emotional distress or mental anguish, 2. Invasion , infringement, or interference with the right to privacy or right of publicity , including false light, public disclosure of private facts, including those of an employee , intrusion , or commercial appropriation of name or likeness; 3. Plagiarism , piracy or misappropnation of id eas; 4. Infringement of copyright, domain name , title , or slogan ; trade dress ; or the dilution or infringement of trademark , service mark , service name, or trade name; 5. Wrongful entry or eviction , trespass , eavesdropping , false arrest , malicious prosecution ; or 6. Liability arising out of your negligence in connection with your release of multimedia content in advertising. AA . Named insured means the individual , partnership , entity , or corporation designated as such in the Declarations . BB . Network event means loss sustained by you in connection with your computer network(s) arising from : 1. A security event ; privacy event or a breach of privacy regulations ; 2. Computer virus; 3. Malicious code ; 4 Accidental corruption or destruction of your data because of human error; 5. Damage or destruction of hardware, so that your data stored is not machine readable ; 6. Malfunction or failure of your computer network ; 7 Programming error of delivered programs ; 8. Natural disaster , but only for corruption , destruction , or damage to your data ; or 9 Failure of a direct or back-up power supply or under/over voltage but only if such power supply 1s owned , operated , and controlled by you. However, a network event ; 1. Only covers losses arising from delivered programs 2. Only pertains to your loss and does not include coverage for any claim made by a third party or any claim resulting from an incident occurring on the computer infrastructure of an outsourced entity or third party service provider. 3. Does not include coverage for loss of any money or securities, except as specifically provided under Insuring Module 9. CC . Network expenditure means costs incurred with our consent and authorized by us arising from a network event , which may include: 1. Your actual costs to restore , re-collect , or replace data, including expenses for materials, working time , and overhead cost allocation at the affected location(s) associated with restoring or replacing data; Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • 2. Your reasonable and necessary costs and expenses incurred with our consent of specialists, investigators , forensic auditors, breach counsel or loss adjusters retained by you for the purpose of conducting a revie w or audit to substantiate that a network event 1s occurring or has occurred , or to determine the scope, cause , or extent of any theft or unauthorized disclosure of information or data, including when your portable media and data storage devices are away from your premises ; 3. Your reasonable and necessary costs and expenses for the use of rented , leased , or hired external equipment , services , labor, premises , or additional operating costs, including staff overtime and expenditure , provided that these costs and expenses were reasonably incurred as a result of a network event , or 4. Any other reasonable and necessary costs and expenses that you incur directly as a result of a network event. Network expenditure does not include Joss of profits or loss of business income or reputational damage . Network expenditure is part of, and not 111 addition to , the Limit of Liability stated within item 3 of the Declarations . DD . Network extortion threat means a credible threat or series of related threats , including a demand for funds , directed at you to avoid corruption , damage , destruction , or introduction of a computer virus, malicious code , or a denial of service to any aspect of your computer network , or any threat or series of related threats to release , or disclose confidential and personal infonnation which resides within your computer network. EE . Network extortion monies means: 1. Monies payable by you, with our prior written consent , to a person(s) or entity(ies) reasonably believed to present a network extortion threat for the purpose of terminating such a threat ; or 2. other reasonable and necessary costs and expenses payable by you with our prior written consent directly resulting from a network extortion threat FF. Notification expenses means those reasonable and necessary legal expenses , postage expenses , and related advertising expenses you incur with our consent and which ar e approved by us to mitigat e damage to your brand or comply vvith governmental privacy legislation mandating notification to affected individuals in the event of a security event, privacy even~ or breach of privacy regulations that results in the compromise or potential compromise of personal information maintained by you or otherwise residing on a computer network operated by you or on your behalf GG. Other asset means a tangible and physical product that is owned by you or is under your trust or control and: Has an economic value ; or 2. Is held as inventory for sale ; or 3. Is sold or exchanged in trade or commerce, or 4 Is shipped via land sea or air Other asset does not include money or securities HH . Policy period means the period of time from the effective date to the expiration date as specified in item 2 of th e Declarations , or to any earlier cancellation date II. Privacy event means a breach of confidentiality , infringement, or violation of any right to privacy including , but not limited to , a breach of your privacy policy, breach of a person's right of publicity , false light, intrusion upon a person's seclusion , or public disclosure of a person 's private information JJ. Privacy regulations means statutes and regulations , associated with the confidentiality, access, control , and use of personally identifiable , non-public information including , but not limited to the following or similar statutes and regulations : Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), known as HIPAA , including amendments contained in the Health Information Technology for Economic and Clinical Health Act (HITECH) and related state medical privacy laws ; Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • 2. Gramm-Leach-Bliley Act of 1999 (G-L-B), also known as the Financial Services Modernization Act of 1999 ; 3. State and Federal statutes and regulations regarding the security and pnvacy of consumer infonnalion ; 4. Governmental privacy protection regulations or laws associated with the control and use of personal information ; 5. Privacy provisions of consumer protection laws , including the Federal Fair Credit Reporting Act (FCRA) and similar state laws; 6. Children 's Online Privacy Protection Act or similar laws ; 7. The EU Data Protection Act or other s1m1lar privacy laws 1n other jurisdictions ; or 8. Identity Theft Red Flags Rules under the Fair and Accurate Credit Transactions Act of 2003 (FACTA). KK . Professional wrongful act means: 1. Negligent breach of dLrty , negligent misrepresentation , or negligent act , error , omission or misleading statement 1n your performance of or failure to perform technology services wrth reference to Insuring Module 3 or miscellaneous professional services with reference to Insuring Module 4. 2. Unintentional breach of contract, but only in connection with your performance of or failure to perfonn technology services . LL . Programming error means an error , flaw , mistake , failure , or fault , which occurs during the development or encoding of a computer program , software , or application, which would , when in operation , result in a malfunction or incorrect operation of a computer network MM. Property damage means physical injury to , impairment , destruction , or corruption of any tangible property , including the loss thereof. Data 1s not considered tangible property NN . Regulatory compensatory award means a regulatory agency 's monetary award to a third party , including a sum or money which you are legally required to deposit into a fund as equitable relief for the payment of consumer claims due to an adverse judgement or settlement of a regulatory proceeding . Regulatory compensatory award does not include a criminal penalty or fine issued by a regulatory agency of any kind , including federal , state , or local governmental agencies. 00. Reputational damage means your loss of net income (net profit or loss before income taxes) due to ; 1. Termination of your services contract by one of your client(s) and/or 2. Reduction in the value of your business and brands ; where such loss arises directly from a network event. PP . Retroactive date means the date specified 1n item 5 of the Declarations . QQ. Securities means written negotiable and non-negotiable instruments or contracts which represent money or other asset Securities does not include the actual money or other asset RR. Security and privacy wrongful act means: 1. A privacy event, security event or breach of privacy regulations committed by you or which occurs on your computer network ; 2. Yourfailure to disclose a security event or privacy event in violation of notification laws or regulations; 3. Your failure to prevent transmission of malicious code , a computer virus, or a denial of service attack from your computer network ; Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • 4. Your failure to prevent loss of employee personally identifiable information, as defined in privacy regulations; or 5. Your failure to maintain the security or confidentiality of personally identifiable information stored on your computer network under any contract , including but not limited to a payment card processing agreement with a financial institution or other payment processor. SS. Security event means The misuse or unauthorized access of your computer network; 2. The use of your computer network for a denial of service attack ; or 3. Your breach of duty to protect the security and confidentiality of non-public proprietary corporate information , and/or personally identifiable non-public information either in an electronic or physical format. TT . Social media event means the release of any electronic multimedia content, by an employee on any social network or social media electronic platform UU. Subsidiary(ies) means: w l/WJ. XX. '('( ZZ . AAA. Any entity of which more than fifty percent (50%) of the issued and outstanding shares are owned by you, on or before the commencement of the policy period ; or 2. Any entity which becomes a subsidiary dunng the policy period provided that such entity does not represent more than a twenty percent (20%) increase in your total assets, employee count or gross revenue as of the date of the acquisition Where such entity represents an increase m your total assets , employee count or gross revenue of more than twenty percent (20%), such entity shall be deemed a subsidiary under this policy , bLrt only upon the condition that within thirty (30) days of it becoming a subsidiary, you shall have provided us with full particulars of the new subsidiary and agreed to any additional premium and/or amendment of the provisions of this policy required by us relating to such new subsidiary, subject to advanced receipt, review and acceptance by us of full and complete underwriting information. Support and credit monitoring expenses means those reasonable and necessary expenses you incur with our consent and which are approved by us for the provision of credit file monitoring services, credit repair and restoration costs, identity theft monitoring expenses, identity theft education and assistance, including call center expenses, in the event of a security event, privacy event or a breach of privacy regulations, which results in the compromise or potential compromise of personal information maintained by you or otherwise residing on a computer network operated by you or on your behalf. Technology services means your computer and electronic technology services, which are performed for and on behalf of your clients or in the course of your business and may include data processing, web design, hosting, internet or network services , content delivery , programming , technology consulting , installation, integration, configuration , support or management services, software development, design , sale or other related technology services. Technology services does not include any other professional activities or advice which is not directly related to technology activities. Telecommunications fraud means an intentional, malicious or wilful act that results in the misuse or unauthorized access of your telecommunication system by a third party. Waiting period means the number of hours that must elapse as provided in item 4 of the Declarations before the recovery of loss of business income can be considered . "We," 'us'', or 'our" means the insurers providing this insurance. "Yo u," 'your" and "yours " means the insured as provided in Section VI of this policy. Ascent US v2 . 22015 A SCENT UI UNDERWR I TIN G ASCENT CYBERPRO POLICY (USA) • VIII. WHAT WE DO NOT COVER : EXCLUSIONS We shall not be liable for any claim directly or indirectly arising out of or in any way attributable to · A. Any wrongful acts or the same , related , or continuing acts, facts , or circumstances that were first committed or first occurred prior to the retroactive date ; B. Any event , threat and/or breach of regulations or the same , related or continuing events, threats , breaches , facts or circumstances that were first committed or first occurred prior to the retroactive date , C. Any wrongful acts or the same, related or continuing acts , facts , or circumstances that took place prior to the continuity date if you knew or could have reasonably foreseen by that date that such acts , facts , or circumstances could be the basis of a claim or circumstance . The continuity date is the earlier of the inception date of either this policy or the first policy issued by Ascent Underwriting to you that has been continuously renewed , D. Any event , threat and/or breach of regulations or the same , related or continuing events , threats , breaches , facts or circumstances that took place prior lo the inception of this policy , if you knew or could have reasonably foreseen such events , threats , breaches , facts or circumstances could be the basis of a claim or circumstance , E. Any claim or circumstance notified to a previous insurer prior to the inception ofthis policy; F. Any claim made by an insured against another insured ; unless such claim is brought by an employee under Insuring Modules 1 or 6; G . Your malicious , fraudulent , dishonest , or criminal act. Notwithstanding the foregoing , the insurance afforded by this policy shall apply lo claims expenses incurred in defending any such claim until final adjudication , but shall not apply to any damages that you might become legally obligated to pay We will have the right to reco ver those claims expenses incurred from those parties found to have committed malicious , fraudulent , dishonest , or criminal acts by a court , jury , or arbitrator. However, this exclusion does not bar coverage for the actions of a rogue employee, or coverage afforded under Insuring Modul e 9. For purposes of this exclusion , "rogue employee' means an employee who acts maliciously , fraudulently , dishonestly or criminally without the knowledge or consent of your Chief Information Officer , Risk Manager, General Counsel , Chief Operations Officer , Chief Executive Officer or their functional equivalents within the legal entity(s) shown in item 1 of the Declarations , H Bodily injury , except that this exclusion shall not apply to wrongful infliction of emotional distress or mental anguish arising out of technology services, multimedia, privacy event, security event , or a breach of privacy regulations; I. Property damage ; For the avoidance of doubt , this policy provides coverage arising from the loss of data when such loss arises from physical damage to hardware; J. Satellite failures ; electrical or mechanical failures and/or interruption including , but not limited to , electrical disturbance , spike , brownout, or blackout; outages to electricity, gas , water , telephone , cable , telecommunications ; gradual deterioration of overhead transmission , distribution lines or subterranean insulation or cabling or other infrastructure , unless such infrastructure is under your operational control and unless such cla im forms part of a network event ; K. The actual or alleged inaccurate , inadequate, or incomplete description of the price of goods , products , or services ; including your cost guarantees , cost representations, contract price , or cost estimates being exceeded ; L The violation of any economic or trade sanctions by the United States government including , but not limited to, sanctions administered and enforced by the United States Treasury Department's Office of Foreign Assets Control ("OFAC "); M. Any breach of any express , implied , actual , or constructive contract , warranty , guarantee , or promise, or the liability of others assumed by you under any contract or agreement , but this exclusion does not apply to : 1. Any liability or obligation you would have in the absence of such contract or agreement ; 2. Unintentional breach of contract , but only with respect to technology services ; or 3. A breach of your privacy policy; Ascent US v2. 220 15 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • N. The actual or alleged government enforcement or investigation of any state or federal regulation including , but not limited to , regulations promulgated by the United States Federal Trade Commission , Federal Communications Commission , or the Securities and Exchange Commission ; but this exclusion does not apply : 1. To the extent that a claim falls under Insuring Modul e 7; or 2. To a claim by a government entity brought in its capacity as a customer of you arising in the course of your pro vision of technology services or miscellaneous professional services to such go vernment entity , 0. Any employer-employee relations policies, practices , acts , or omissions, any actual or alleged refusal to employ any person, or any misconduct with respect to employees. This includes , but is not limited to, claims arising under workers compensation or similar laws unless such claims are made by an employee arising out of a security event , privacy event or breach of privacy regulations; P Any actual or alleged discrimination of any kind including , but not limited to, age , color, race , gender, creed , national origin , marital status , sexual preferences , disability , or pregnancy ; Q. Strikes or similar labor actions , war , invasion , act of foreign enemy , hostilities or warlike operations (whether declared or not), civil war , mutiny , civil commotion assuming the proportions of or amounting to a popular uprising , military uprising , insurrection , rebellion , revolution , military or usurped power , or any action taken to hinder or defend against these actions . This exclusion also excludes coverage for any loss or damages arising out of confiscation or nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority. This exclusion also excludes loss , cost , damages , or claims expenses of whatsoever nature directly or indirectly caused by , resulting from , or in connection with any action taken in controlling , preventing , suppressing , or in any way relating to the above ; R. All losses or expenses arising from a terrorist act. For the purposes of this agreement , a terrorist act means an act or series of acts including the use of force or violence of any person or group(s) of persons , whether acting alone or on behalf of or in connection with any organization(s), committed for political , religious , or ideological purposes , including th e intention to influence any government and/or to put the public in fear for such purposes, S. Your commercial decision to cease providing a particular product or service ; T Pnzes , awards , or coupons ; U. Any fine or penalty arising out of any agreement by you to comply with or follow the Payment Card Industry Standard or any Payment Card Company rules ; or implement , maintain, or comply with any security measures or standards related to any payment card data including , but not limited to , any fine or penalty imposed by a payment card company on a merchant bank or payment processor that you have paid or agreed to reimburse or indemnify. However , this exclusion shall not apply to civil penalties and fines to the extent insurable by law arising out of an otherwise co vered claim under Insuring Module 7; V Any actual or alleged unfair competition , antitrust violations , deceptive trade practices , or restraint of trade or antitrust statute , legislation , or regulation . However, this exclusion shall not apply to the extent that a claim falls under Insuring Module 7; W. The actual or alleged infringement of any patent or the misappropriation , theft , copying, display or publication of any trade secret , unless such claim arises from a security event or a privacy event and does not involve your actual or alleged infringement , misappropriation, theft, copying , display or publication , X. Your knowing use of illegal or unlicensed programs that are in violation of the provisions or laws referring to software protection ; Y. The actual or alleged purchase , sale , offer of, or solicitation of an offer to purchase or sell securities , or violation of any securities law including , but not limited to , the pro visions of the Securities Act of 1933 , the Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002, or any regulation promulgated under the foregoing statutes , or any federal, state , local , or foreign laws similar to the foregoing statutes , including "Blue Sky' laws , whether such law is statutory , regulatory , or common law; Z. Unauthorized trading of money, securities , property or any other medium whether or not 1n your name and whether or not in a genuine or fictitious account. This exclusion also applies to trading in excess of approved authority levels or outside of approved parameters. This exclusion shall not apply to direct losses incurred by you as a result of computer Ascent US v2 . 22015 A SCENT UI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • fraud which results in improper financial gain to an employee . However, we shall not be liable for any employee salary , commissions , fees or other employment associated compensation ; IX. INNOCENT INSURED PROVISION A. Whenever coverage under this policy would be excluded , suspended , or lost because of non-compliance with Section XI, relating to the giving of notice of claim to us, with respect to which any other insured shall be in default solely because of the failure to give such notice or concealment of such failure by one or more insureds responsible for the loss or damage otherwise insured hereunder, then such insurance as would otherwise be afforded under this policy shall cover and be paid with respect to those insureds who did not personally commrt , personally participate in committing, or personally acquiesce in such failure to give notice , provided that the insured entitled to the benefit ofth1s provision shall comply with Section XI promptly after obtaining knowledge of the failure of any other insured to comply therewith. Notwithstanding the foregoing , the reporting of any such claim must be made during the policy period or extended reporting period, if applicable . B. Whenever coverage under this policy would be excluded, suspended , or lost because of Exclusion G relating to malicious , fraudulent , dishonest , or criminal acts by any insured , then such insurance as would otherwise be afforded under this policy shall cover and be paid with respect to those insureds who did not personally commit , personally participate in committing, personally acquiesce , or remain passive after having personal knowledge thereof. X. EXTENDED REPORTING PROVISI ONS A. Automatic Extended Reporting Period: If either you or us shall cancel or non-renew this policy , you shall have the right following the effective date of such cancellation or non-renewal, to a period of sixty (60) days thereafter in which to give written notice to us of claims relating to those Insuring Module(s) purchased as shown in the Declarations, provided that any actual or alleged wrongful acts under Insuring Module(s) 1, 2, 3, or 4, network event under Insuring Module(s) 5 or 10, security event, privacy event, or breach of privacy regulations under Insuring Module 6, privacy event, security event, or breach of privacy regulations under Insuring Module 7, network extortion threat under Insuring Module 8, or security event under Insuring Module 9, all if applicable, occurred prior to the end of the policy period and are otherwise covered by this policy, and are reported to us during the automatic extended reporting period , and subject to the conditions set forth herein . B. Extended Reporting Period Endorsement: In the event of cancellation or non-renewal of this policy by you or us , you shall have the right , upon payment in full and not proportionally or otherwise in part of: 1. One hundred and twenty five percent (125%) of the gross annual premium set forth in item 6 of the Declarations to have issued an endorsement pro viding a 12-month extended reporting period for claims relating to those Insuring Module(s) purchased as shown in the Declarations , provided that any actual or alleged wrongful acts under Insuring Module(s) 1, 2, 3, or 4, network event under Insuring Module(s) 5 or 10 , security event , privacy event, or breach of privacy regulations under Insuring Module 6, privacy event, security event, or breach of privacy regulations under Insuring Module 7, network extortion threat under Insuring Module 8, or security event under Insuring Module 9, all if applicable , occurred prior to the end of the policy period and are otherwise covered by this policy and are reported to us during the extended reporting period, and subject to the conditions set forth herein; or 2. Two hundred percent (200%) of the gross annual premium set forth 1n item 6 of the Declarations to have issued an endorsement providing a 24-month extended reporting period for claims relating to those Insuring Module(s) purchased as shown in the Declarations , provided that any actual or alleged wrongful acts under Insuring Module(s) 1, 2, 3, or 4, network event under Insuring Module(s) 5 or 10 , security event , privacy event, or breach of privacy regulations under Insuring Module 6, privacy event, security event, or breach of privacy regulations under Insuring Module 7, network extortion threat under Insuring Module 8, or security event under Insuring Module 9, all if applicable, occurred prior to the end of the policy period and are otherwise covered by this policy and are reported to us during the extended reporting period , and subject to the conditions set forth herein . In order for the named insured to purchase the extended reporting period, the payment of the additional premium must be paid to us within thirty (30) days of the non-renewal or cancellation Ascent US v2 . 22015 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • C. The Limit of Liability for the above extended reporting periods shall be part of, and not in addition to, the Limit of Liability for the policy period D. Our quotation ofa different premium, deductible , or Limit of Liability or changes in policy language forthe purpose of renewal shall not constitute a refusal to renew by us . E. The right to the extended reporting period shall not be available to the named insured where cancellation or non-renewal by us is because ofnon-payment of premium or your failure to pay amounts within the applicable deductible . G. All notices and premium payments with respect to the extended reporting period shall be directed to us through your insurance agent or broker. H. At the commencement of the extended reporting period in Paragraph B, above, the entire premium shall be deemed earned and in the event the named insured terminates th e extended reporting period for any reason prior to its natural expiration , we will not be liable to return any premium paid forthe extended reporting period . XI. NOTICE OF CLAIM OR CIRCUMSTANCE THAT MIGHT LEAD TO A CLAIM A. If any claim is made against you under Insuring Module(s) 1, 2, 3, or 4 then you shall forward every demand , notice , summons , or other information received by you or your representative to us, through persons named in item 7 of the Declarations , as soon as practicable after your Chief Information Officer, Risk Manager, General Counsel , Chief Operations Officer, Chief Executive Officer or their functional equivalents within the legal entity(s) shown in item 1 of the Declarations have first become aware of such claim , provided that such demand , notice , summons or other information is not received by us more than fourteen (14) days alter the expiration of the policy period. B. If you have any claim under Insuring Module(s) 5, 6, 7, 8, 9, or 10 then , you shall immediately forward to us notice through persons named in item 7 of the Declarations , as soon as practicable after your Chief Information Officer , Risk Manager , General Counsel , Chief Operations Officer , Chief Executive Officer or their functional equivalents within the legal entity (s) shown in item 1 of the Declarations have first become aware of such claim , provided that such notice is not received by us more than fourteen (14) days alter the expiration of the policy period. C. If during the policy period, your Chief Information Officer , Risk Manager, General Counsel , Chief Operations Officer, Chief Executive Officer or their functional equivalents within the legal entity(s) shown 1n item 1 of the Declarations become aware of any acts, facts, or circumstances that they believe could give rise to a claim, they must give written notice of the following information to us , through persons named in item 7 of the Declarations , as soon as practicable during the policy period: D. 1. Specific details of the acts , facts, or circumstances that could reasonably be the basis for a claim ; 2. Possible damages, penalties , or other amounts potentially covered under this policy that may result or has resulted from the acts, facts or circumstances ; 3. Details regarding how you first became aware of the acts , facts, or circumstances ; and 4. The computer network security and event logs , which provide evidence of the alleged incident. Any subsequent claim arising out of such acts , facts , or circumstances which is the subject of the wntten notice will be deemed to be a claim at the time written notice complying with the above requirements was first given to us. Any claim arising under Insuring Module(s) 5, 9 or 10 will be deemed to have been mad e on the date you first became aware of the acts , facts , or circumstances resulting in such loss A claim shall be considered to be reported to us when notice is first given to us through persons or entity named in item 7 of the Declarations . Ascent US v2 . 22015 A SCENT UI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • XII. CALCULATION OF LOSS PROVISIONS REGARDING LOSS OF BUSINESS INCOME , INTANGIBLE ASSET AND REPUTATIONAL DAMAGE In the event of loss occurring under Insuring Modules 5, 9and/or10 an auditor and/or a loss adjuster will be appointed by mutual agreement of us and you to calculate the amount of loss. If such an agreement cannot be reached , we will appoint the auditor and/or loss adjuster subject to your consent, such consent not to be unreasonably withheld. We will pay the cost and expense related to the auditor and/or loss adjuster that exceed your deductible as stated in Item 4 of the Declarations. Such payment will be applied against the applicable Limit of Liability Requests made by you for indemnity by us shall be accompanied by a computation of the loss consistent with this section of the policy. This shall set out in detail how the loss has been calculated and what assumptions have been made. You shall produce any documentary evidence , including any applicable reports , books of accounts , bills , invoices , and other vouchers and copies of such which we may require, and you shall afford us or our agent every assistance in their investigations . Any claims payment under this Section will, where applicable, be reduced by the extent to which you: A. Use damaged or undamaged data, or intangible asset, or B. Make use of available stock, merchandise , or other data or intangible asset ; or C. Use substitute facilities , equipment, or personnel. LOSS OF BUSINESS INCOME UNDER INSURING MODULE 5 AND REPUTATIONAL DAMAGE UNDER INSURING MODULE 10 The calculation of loss regarding loss of business income and reputational damage under Insuring Module(s) 5 and 10 will be based solely on loss of the net income attributable to a network event and shall be based on an analysis of the re venues and costs generated during each month of the twelve (12) months prior to the loss occurring and will also take into account the reasonable projection of future profitability or otherwise had no loss occurred and will include all material changes in market conditions that would affect the profits generated . INTANGIBLE ASSET UNDER INSURING MODULE 9 The calculation of loss regarding intangible asset under Insuring Module 9 will be based solely on loss of the net income attributable to electronic theft or computer fraud and shall be based on an analysis of the revenues and costs generated during each month of the twelve (12) months prior to the loss occurring and will also take into account the reasonable projection of fi.1ture profitability or otherwise had no loss occurred and will include all material changes in market conditions that would affect the profits generated . Any dispute that arises between you and us regarding the calculation of loss shall be resolved In accordance with Section XXI DISPUTE RESOLUTION. XIII. ASSISTANCE AND COOPERATION A. You shall cooperate with us in all investigations. You shall execute all papers and render all assistance as requested by us. Part of this assistance may require you to provide copies of a third party's system security and event logs. B. Upon our request , you shall assist in making settlements in the conduct of suits and in enforcing any right of contribLrtion or indemnity against any person or organization who may be liable to you with respect to which insurance 1s afforded under this policy; and you shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses at your own cost. C. You shall not admit any liability , make any payment, assume any obligations, incur any expense, enter into any settlement , stipulate to any judgment or award, or dispose of any claim without our written consent. However, the prompt public admission of a security event potentially impacting non-public personally identifiable information of employees or third parties as required by governmental pnvacy legislation or credit card association operating requirements will not be considered as an admission of liability requiring our prior consent; however we are to be informed as soon as practicable of such public admission if such public admission is a circumstance that could lead to a claim . Ascent US v2 . 220 15 ASCENTUI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • D. We shall have the right to make any investigation that we deem necessary with respect to coverage including, but not limited to , any investigation with respect to the application , statements made 1n the application and any supplemental material submitted therewith . We shall be permitted to inspect your property , operations , or records . E. You shall submit for examination under oath by our representative, if requested, in connection with all matters relating to this policy. XIV. SUBROGATION If any payment is made under this policy and there is available to us any of your rights of recovery against any third party, then we shall maintain all such rights ofrecovery You shall execute and deliver instruments and papers and do whatever else 1s necessary to secure such rights . You shall do nothing to prejudice such rights. Any recoveries shall be applied first to subrogation expenses, second to damages , claims expenses, or any other amounts paid by us , and lastly to the deductible. Any additional amounts recovered shall be paid to you . XV. OTHER INSURANCE This policy shall apply in excess of any other valid and collectible insurance policy available to you , including any deductible or deductible portion thereof, unless such other insurance 1s written only as specific excess insurance over the Limit of L1abilrty of this policy. XVI. ENTIRE AGREEMENT By acceptance of this policy, you agree that this policy embodies all agreements between you and us relating to this insurance Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or stop us from asserting any right under the terms of this insurance; nor shall the terms of this insurance be waived or changed , except by endorsement issued to form a part of this policy and signed by us. XVII. ASSIGNMENT The interest hereunder is not assignable by you or your subsidiaries. If an insured shall die or be adjudged incompetent, such insurance shall cover your legal representative as you would be covered under this policy XVIII. CANCELLATION BY YOU lfth1s policy is cancelled by you, thirty percent (30%) of the premium shall be deemed earned Llpon inception of this policy and we will refund the remaining unearned premium computed on a daily pro rata basis therea1ter No premium will be refunded where any claims or circumstances have been notified under this policy . XIX. CANCELLATION BY US We will only cancel this policy if you fail to pay the premium within the terms of the payment warranty specified within the Declarations, or if a principal , partner, executive officer , or director intentionally makes a matenal misrepresentation to us in regard to any claim notified to us under this policy ; in which case , we will provide a notice of cancellation in accordance with the applicable law. XX. CHANGE OF CONTROL Should there be a "change of control " to the Named Insured during the policy period all coverage under this Policy shall terminate at the date of such "change of control ' unless we have issued an endorsement extending coverage under this Policy and you have agreed to pay any additional premium and agreed to any addrtional terms of coverage required by us . A "change of control" to the Named Insured will be considered to be any of the following: your acquisition by or merger into another entity , your liquidation or dissolution , or the sale, or disposition of substantially all of your assets Ascent US v2 . 220 15 A SCENT UI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • XXI. WORDS AND TITLES OF PARAGRAPHS The titles of paragraphs , section, provisions , or endorsements of or to this policy are intended solely for convenience and reference and are not deemed in any way to limit or expand the provisions to which they relate and are not part of this policy. Whenever the singular form of a word is used herein , the same shall include the plural when required by context. XXll . DISPUTE RESOLUTION A. No action shall lie against us unless, as a condition precedent thereto, there shall have been full compliance with all terms of this policy, and until the amount of your obligation to pay shall have been finally determined erther by judgment or a1111ard against you after actual trial or arbitration or by \11/ritten agreement of you, the claimant , and us . B. No person or organization or any legal representative thereof who has secured such judgment , award, or written agreement shall thereafter be entitled to make a claim under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join us as a party to an action or other proceeding against you to determine your liability, nor shall we be impleaded by you or your legal representative . Bankruptcy or insolvency of you or of your estate shall not relieve us of our obligations under this policy C. Mediation. If any dispute arises between you and us involving this policy and/or a claim hereunder, it is hereby mutually agreed by you and us that such dispute shall be referred to a qualified mediator in a good faith effort to negotiate a resolution of the dispute, prior to the initiation of any arbitration or other proceedings. The party electing to mediate shall provide written notice to the other party setting forth its request to mediate and a brief statement regarding the issue to be mediated. The persons named in item B of the Declarations are authorized and directed to accept the Notice of Mediation on behalf of us. The named insured is authorized and directed to accept the Notice of Mediation on behalf of any insured . D. Arb1trat1on As a condition precedent to any right of action hereunder, in the event that a good faith effort to mediate pursuant to Section XXI (C) above cannot resolve a dispute between you and us involving this policy or a claim hereunder, it is hereby mutually agreed that such dispute shall be determined by final and binding arbitration before a single arbitrator. Such arbitration cannot be commenced until thirty (30) days after the conclusion of the mediation pursuant to Section XXI (C). If the parties cannot mutually select the arbitrator, the parties will refer the selection of the arbitrator to the American Arbitration Association XXll l. SERVICE OF SUIT CLAUSE (U.S.A) A. Subject to the application of Section XXI, it is agreed that in the event of our failure to pay any amount claimed to be due under this policy, we , at your request , will submit to the jurisdiction of a court of competent jurisdiction within the United States. Nothing in this clause constitutes or should be understood to constitute a waiver of our rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a Unrted States District Court, or seek a transfer of a case to another court as permitted by the laws of the United States or any state in the United States . It is further agreed that service of process in such suit may be made upon our representative , designated in item 8 of the Declarations, and that in any suit instituted against any one of them upon this contract; we will abide by the final decision of such court, or of any appellate court in the event of an appeal. B. Our representative designated in item 8 of the Declarations is authorized and directed to accept service of process on our behalf in any such suit and/or upon your request to give a written undertaking to you that they will enter a general appearance upon our behalf in the event such a suit shall be instituted C. Pursuant to any statute of any state, territory, or district of the United States which makes provision therefore, we hereby designate the Superintendent, Commissioner, or Director of Insurance or other officer specified for that purpose in the statute , or his successor in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit , or proceeding instituted by or on your behalf or any beneficiary hereunder arising out of this policy, and we hereby designate our representative listed in item 8 of the Declarations as the person to whom the said officer is authorized to mail such process or a true copy thereof . Ascent US v2 . 22015 A SCENT UI UNDERWR I TING ASCENT CYBERPRO POLICY (USA) • XX IV. CHOICE OF LAW The interpretation of this policy and any disputes involving this policy shall be resolved applying the law designated in item 9 of the Declarations . XXV. WARRANT Y BY YOU By acceptance of this policy , all insureds agree that the statements contained in the application , any application for insurance if this policy is a renewal, and any supplemental materials submitted therewith are their agreements and representations , which shall be deemed material to the risk assumed by us , and that this policy is issued in reliance upon the truth thereof. The misrepresentation or non-disclosure of any matter by you or your agent in the application and any supplemental materials submitted to us , will render this policy null and void and relieve us from all liability under this policy. The application, and any supplemental materials submrtted to us are deemed incorporated into and made a part of this policy . Ascent US v2 . 22015 ASCENT " CERTIFICATE ATTACHING TO AND FORMING PART OF Ascent CyberPro US v2.2 UNDERWRI T ING ASD15D001910 Certificate Number Named Insured Period of Insurance County of Oakland a Michigan Municipal & Constitutional Corporation From September 1, 2015 To September 1, 2016 (both days at 12 01 a.m Local Standard Time at the address shown of the Named Insured) Endorsement No. 2 Post-Binding Subjectivity Condition Endorsement It is hereby understood and agreed that: This policy is issued expressly subject to satisfactory responses to the following within 7 days of the inception date of this Policy. 1. Confirmation of surplus lines details (including name , address , license number and expiry date). If the above deadline is not met, this Policy will automatically be cancelled and void with effect from Inception . If we deem the responses to be unsatisfactory, we may: 1 Cancel this Policy ab initio , or ; 2. cancel this Policy as at such date and we shall be entitled to the pro rata proportion of the premium hereon , or; 3. impose any additional terms conditions , exclusions or additional premium charge as we may require In the event we exercise our right to impose any additional terms , conditions , exclusions or additional premium charge then you shall have the right to refuse to accept such additional terms , conditions, exclusions or additional premium charge which will have the effect of cancelling this Policy as at the date such additional terms , conditions, exclusions or additional premium charge were imposed , and we shall be entitled to the pro rata proportion of the premium hereon . All other terms and conditions remain unchanged. Dated September 9, 2015 www.asce ntund erwr it inq .co m A ASCENT" CERTIFICATE ATTACHING TO AND FORMING PART OF Ascent CyberPro US v2.2 UNDER W RITING Certificate Numbe r Named Insured Period of Insurance ASD15D001910 County of Oakland a Michigan Municipal & Constitutional Corporation From September 1, 2015 To September 1, 2016 (both days at 12 01 a.m Local Standard Time at the address shown of the Named Insured) Endorsement No. 1 Payment Card Industry Fines or Penalties Endorsement It is hereby understood and agreed that: 1. The following Insuring Module is added under I. WHAT WE COVER : INSURING MODULES PAYMENT CARD INDUSTRY FINES OR PENALTIES INSURING MODULE We shall pay on your behalf Payment Card Industry fines or penalties in excess of your deductible as stated within item 4 of the Declarations, which you become legally obligated to pay as a result of any claim first made against you and notified by you to us in writing , in accordance with Section XI of this policy , during the policy period or an y extended reporting period, if applicable , arising solely from a privacy event , or security event. 2. Item 3(A) of the Declarations is amended to include the following: PA YMENT CARD INDUSTRY FINES OR PENALTIES IN SURING MODULE . USO 1,000 ,000 Each claim and in the aggregate including claims expenses 3. Item 4 of the Declarations is amended to include the following : PA YMENT CARD INDU STRY FINES OR PENALTIES INSURING MODULE: USO 100 ,000 Each and every claim including claims expenses 4 It is agreed that Section VI I. DEFINITIONS , is amended to include the following additional definitions: Payment Card Industry fines or penalties means direct monetary fines , penalties , reimbursements , fraud recoveries or assessments owed by you under the terms of a Merchant Services Agreement with a credit card association but only where such fines , penalties , reimbursements , fraud recoveries or assessments arise because of your non-compliance with Payment Card Industry Data Security Standards Payment Card Industry fines or penalties does not include any charge backs , interchange fees , discount fees or prospective service fees . Credit card association means Visa , MasterCard , American Express , Discover , or JCB. Payment Card Industry Data Security Standards means published and generally accepted security standards for the Payment Card Industry 5. It 1s agreed that Paragraphs M and U, Section VIII. WHAT WE DO NOT COVER: EXC LUSIONS , are deleted in their en!Jrety and replaced with the following . www.asce ntund erwr it inq .co m A ASCENT '" CERTIFICATE ATTACHING TO AND FORMING PART OF Ascent CyberPro US v2.2 UNDERWRITING M. Any breach of any express, implied, actual, or constructive contract, warranty, guarantee, or promise, or the liability of others assumed by you under any contract or agreement, but this exclusion does not apply to: 1. Any liability or obligation you would have in the absence of such contract or agreement; 2. Unintentional breach of contract, but only with respect to technology services ; or 3 A breach of your privacy policy ; 4 To the extent that a claim falls under the Payment Card Industry Fines or Penalties Insuring Module U Any fine or penalty arising out of any agreement by you to comply with or follow the Payment Card Industry Standard or any Payment Card Company Rules; or implement, maintain, or comply with any security measures or standards related to any payment card data including, but not limited to, any fine or penalty imposed by a payment card company on a merchant bank or payment processor that you have paid or agreed to reimburse or indemnify. However, this exclusion shall not apply to civil penalties and tines to the extent insurable by law arising out of an otherwise covered claim under Insuring Module 7 This exclusion shall also not apply to Payment Card Industry fines or penalties arising solely from a privacy event , security event , or breach of privacy regulations. All other terms and conditions remain unchanged. Dated September 9, 2015 www.ascen tun derwrit in q.co m A AMENDMENT OF CONTRACT 004741 Page 1 OAKLAND COUNTY EXECUTIVE, L. BROOKS PATTERSON COMPLIANCE OFFICE PURCHASING Compliance Office | Purchasing 248-858-0511 | purchasing@oakgov.com Rev 2015/12/02(v2) IT RLB AMENDMENT OF CONTRACT 004741 AMENDMENT 01 AMENDMENT DATE: May 14, 2019 This AMENDMENT OF CONTRACT (hereafter this "Amendment") is made and entered into by and between the Contractor named and identified below, (hereafter “Contractor”) and the COUNTY OF OAKLAND (hereafter “County”) whose address is 2100 Pontiac Lake Rd, Waterford, MI 48328. CONTRACTOR ADDRESS Elavon Inc 7300 Chapman Highway Knoxville, TN 37920 Vendor Number: 20354 The County and Contractor agree and acknowledge that the purpose of this Amendment is to modify as provided herein and otherwise continue the present contractual relationship between the Parties as described in their current contract with the same contract number as above. In consideration of the extension of the mutual promises, representations, assurances, agreements, and provisions in the Contract and this Amendment, the adequacy of which is hereby acknowledged by the Parties, the County and Contractor hereby agrees to amend the current Contract as follows: 1.0 The County and Contractor agree that any and all defined words or phrases in the current Contract between the parties will apply equally to and throughout the amendment. 2.0 The Parties agree that any and all other terms and conditions set forth in the current Contract between the Parties shall remain in full force and effect and shall not be modified, excepted, diminished, or otherwise changed or altered by this Amendment exc ept as otherwise expressly provided for in this Amendment. 3.0 Description of Change: Extend the contract expiration date from 4/30/2019 to 4/30/2021 AMENDMENT OF CONTRACT 004741 Page 2 OAKLAND COUNTY EXECUTIVE, L. BROOKS PATTERSON COMPLIANCE OFFICE PURCHASING Compliance Office | Purchasing 248-858-0511 | purchasing@oakgov.com Rev 2015/12/02(v2) For and in consideration of the mutual assurances, promises, acknowledgments, warrants, representations, and agreements set forth in the Contract and this Amendment, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the undersigned hereby execute this Amendment on behalf of the County, and Contractor and by doing so legally obligate and bind the County and Contractor to the terms and conditions of the Contract and this Amendment. THE CONTRACTOR: SIGN / DATE: Elavon Inc THE COUNTY OF OAKLAND: SIGN / DATE: Pamela L. Weipert, CPA CIA, Compliance Officer or Scott N. Guzzy, CPPO, MBA, Purchasing Administrator aec Scott N. Guzzy (May 14, 2019) Timothy Miller (May 16, 2019) Timothy Miller 004741 AMENDMENT OF CONTRACT 004741 Page 1 IT WKP AMENDMENT OF CONTRACT 004741 AMENDMENT 02 AMENDMENT DATE: March 24, 2022 This AMENDMENT OF CONTRACT (hereafter this "Amendment") is made and entered into by and between the Contractor named and identified below, (hereafter “Contractor”) and the COUNTY OF OAKLAND (hereafter “County”) whose address is 2100 Pontiac Lake Rd, Waterford, MI 48328. CONTRACTOR ADDRESS Elavon Inc 7300 Chapman Highway Knoxville, TN 37920 Vendor Number: 20354 The County and Contractor (also referred to herein as “Elavon”) agree and acknowledge that the purpose of this Amendment is to modify as provided herein and otherwise continue the present contractual relationship between the Parties as described in their current contract (as amended) with the same contract number as above (for clarity, Contract 004741 is entitled Third Party Agent Agreement and dated August 4, 2016). In consideration of the extension of the mutual promises, representations, assurances, agreements, and provisions in the Contract and this Amendment, the adequacy of which is hereby acknowledged by the Parties, the County and Contractor hereby agrees to amend the current Contract as follows: 1.0 2.0 3.0 The County and Contractor agree that any and all defined words or phrases in the current Contract between the parties will apply equally to and throughout the amendment. The Parties agree that any and all other terms and conditions set forth in the current Contract between the Parties shall remain in full force and effect and shall not be modified, excepted, diminished, or otherwise changed or altered by this Amendment except as otherwise expressly provided for in this Amendment. Description of Change: 004741 AMENDMENT OF CONTRACT 004741 Page 2 3.1 All Non-County Public Bodies, which are not currently using Contractor’s Services through the County, that desire to use Contractor’s Services must complete Contractor’s standard Company Application, which incorporates the Terms of Service (“Public Body TOS”) located at: https://www.merchantconnect.com/CWRWeb/pdf/TOS_ENG.pdf. 3.2 For Non-County Public Bodies, which are not currently using Contractor’s Services through the County, the Parties shall comply with the following process: 3.2.1 Elavon will provide a Company Application to be used with non-County Public Bodies to be completed by the County and the new non-County Public Body; 3.2.2 Elavon will exclude (not show) County pricing information on Company Application except County will add GPISF Pricing, which will say “see sheet;” and 3.2.3 County will send the Company Application to non-County Public Bodies including a service fee pricing sheet and send signed Company Applications to Elavon. 3.3 County must promptly include a link to Contractor’s Public Body TOS identified above on its website. 3.4 For current non-County Public Bodies that do not have a Company Application on file with Contractor and are currently using Elavon Services, the Parties shall comply with the following process: 3.4.1 Elavon will complete (fill out) the necessary information in the Company Application and GPISF Pricing will say “see sheet;” County service fee pricing information will be provided by County; 3.4.2 Elavon will send the completed Company Applications to County to distribute to non-County Public Bodies for signature with the service fee pricing sheet; and 3.4.3 County will send signed non-County Public Bodies Company Applications to Elavon. 3.5 Both County and non-County Public Body MID numbers will not be changed and will remain the same as of the date of this Amendment. 3.6 Elavon will create a new Service Fee MID where all Service Fee transactions will be processed for both County and Non-County Public Bodies. County will program the new MID into the payment system and will notify Elavon when the programing is completed. 3.7 The following documents are added to the Contract and replace any conflicting terms of the Third Party Agent Agreement: 004741 AMENDMENT OF CONTRACT 004741 Page 3 Schedule B – Elavon Network Integration Agreement Schedule C – Partner Services Agreement Schedule D – Requirements for Contractors with Access to County Personal Information Schedule E - Contractor (Elavon) Insurance Requirements Schedule F – Second Addendum to the Terms of Service Schedule G - Application Schedule H - 2006 County Terms of Service (TOS) Schedule I – Remediation Process (collectively, the “Contract”). 3.8 Extend the Contract expiration date from 4/30/2021 to 08/30/2023. For the purposes of clarity, this duration term shall supersede and control over any other duration term in the Public Body TOS or other agreement documents. 3.9 For the purposes of clarity, for transactions processed by the County, the County and Contactor will comply with the Terms of Service, dated June 13, 2006 between the County, Contractor f/k/a NOVA Information Systems, Inc. and U.S. Bank National Association (the “2006 County TOS”), which is incorporated into this Amendment and the Contract, for the duration of the Contract. The provisions applicable to NOVA Information Systems, Inc. in the 2006 County TOS shall apply to Contractor. For clarity, the Merchant Operating Guide referenced in the TOS is now located at: https://www.merchantconnect.com/CWRWeb/pdf/MOG_Eng.pdf. 3.10 If Elavon possesses, stores, processes, or transmits County and/or Public Body data that is considered Payment Card Industry (PCI) Data by the PCI Security Standards Council, Elavon shall comply with PCI Data Security Standard (DSS) and shall provide the County with a website link for evidence of its Compliance with PCI Data Security Standard on or before the date this Amendment is signed by the Parties. Elavon will keep its Certification of Compliance with PCI Data Security Standard current and will provide evidence that the Certification of Compliance is current to County upon request. For and in consideration of the mutual assurances, promises, acknowledgments, warrants, representations, and agreements set forth in the Contract and this Amendment, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the undersigned hereby execute this Amendment on behalf of the County, and Contractor and by doing so legally obligate and bind the County and Contractor to the terms and conditions of the Contract and this Amendment. 004741 AMENDMENT OF CONTRACT 004741 Page 4 THE CONTRACTOR: SIGN / DATE: Elavon Inc THE COUNTY OF OAKLAND: SIGN / DATE: Scott N. Guzzy, CPPO, MBA, Purchasing Administrator CLA Timothy Miller (Apr 25, 2022 11:53 EDT) Timothy Miller Scott N. Guzzy (Apr 25, 2022 13:55 EDT) Scott N. Guzzy 004741 AMENDMENT OF CONTRACT 004741 Page 5 SCHEDULE B ELAVON NETWORK INTEGRATION AGREEMENT This Elavon Network Integration Agreement (“Schedule B”) is entered into as of the Schedule B Effective Date by and between Elavon, Member, and the entity identified as Partner in the signature block below (“Partner”). Partner provides Partner Services to end user merchant customers, certain of which are or may in the future be Merchants. Elavon provides the Elavon Services to Merchants. Elavon will provide Partner with access to the Elavon Network in consideration of Partner’s agreement to the terms of this Schedule B, including certain Payment Network requirements and obligations on Elavon and Member to identify, register, and monitor entities such as Partner. Agreed and accepted, in consideration of the mutual promises, covenants and representations contained in this Schedule B, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged. OAKLAND COUNTY, MICHIGAN (“PARTNER”) By: Name: Title: Address for Notices: OAKLAND COUNTY PURCHASING 2100 Pontiac Lake Rd 41W Waterford, MI 48328-2762 ELAVON & MEMBER By: Name: Title: Date: (“Schedule B Effective Date”) Address for Notices: Two Concourse Parkway, Ste. 800 Atlanta, GA 30328 Attn: Partner Administration with a copy to: Chief Counsel - Elavon 1. DEFINED TERMS. Capitalized terms within this Schedule B will have the meanings stated in Appendix 1 or the Contract, as applicable. Timothy Miller (Apr 25, 2022 11:53 EDT) Timothy Miller Timothy Miller Senior Vice President Apr 25, 2022 Scott N. Guzzy (Apr 25, 2022 13:55 EDT) Scott N. Guzzy Scott N. Guzzy Purchasing Administrator 004741 AMENDMENT OF CONTRACT 004741 Page 6 2. TERM AND TERMINATION. This Schedule B begins on the Effective Date and will remain in effect until: (i) any party terminates the Schedule B with ninety (90) days’ notice to the other party; (ii) Partner is no longer registered with any Payment Network; (iii) any Payment Network requires Elavon or Member to terminate this Schedule B or the Contract; or (iii) there are no Merchants using the Partner Services. 3. PARTNER OBLIGATIONS. 3.1. Partner will certify the Partner Services to the Elavon Network to ensure the Partner Services properly transmit transaction data to Elavon. Partner will re-certify Partner Services that are modified (except standard maintenance, error corrections and minor enhancements that do not affect the operation, security or stability of the Partner Services). 3.2. Partner will not license or permit third parties to use software or hardware provided by Partner to act as a payment gateway to Elavon without the express written permission of Elavon. Partner is responsible for ensuring that any of its agents, contractors, subcontractors, vendors, or suppliers that process, store, or transmit Cardholder Data comply with all applicable Laws, Payment Network Regulations, and the Security Programs. 3.3. Partner will notify Elavon as soon as possible if any action is taken or threatened relating to the Partner Services by any Payment Network or any action related to Partner’s obligations under this Schedule B is taken or threatened by any governmental authority having jurisdiction over Partner, unless notification is legally prohibited by such governmental authority. The notice will identify the Payment Network or governmental authority bringing the action, the date such action was taken or intended to be taken, and the nature of the action. 3.4. Partner will comply with all applicable Laws, Payment Network Regulations, and Security Programs, and will supply documentation reasonably satisfactory to Elavon verifying such compliance upon request. Partner agrees that any of the Payment Networks may, in their individual sole discretion, impose risk conditions on Partner and Partner will comply with any such conditions. 3.5. Partner will promptly notify Elavon and Member, and in any event within forty-eight (48) hours, of any reasonably suspected or confirmed loss, theft, misuse, or unauthorized access to Cardholder Data, whether it occurred at the Partner, a Merchant, or a third party (a “Security Intrusion”). Partner must provide a report to Elavon with details of the Security Intrusion and the corrective action Partner has taken and will take as soon as is reasonably practicable. Partner will cooperate fully with all governmental authorities and law enforcement agencies investigating the Security Intrusion. Partner will cooperate fully with any request from a Payment Network, directly or through Elavon or Member, to conduct a review or audit of Partner’s operations and records, including a request that Partner engage an independent third party forensic agency acceptable to 004741 AMENDMENT OF CONTRACT 004741 Page 7 the Payment Network to examine Partner or any of its third parties with respect to the Security Intrusion. 3.6. Partner will cooperate with any request to audit or inspect Partner’s records or operations related to this Schedule B by any Payment Network or any governmental authority, directly or through Elavon or Member, and will comply in a timely manner with any requests from such entities or authorities for documentation and information. If any audit or inspection reveals any deficiency, Partner will also provide to Elavon all documentation related to resolution of such deficiencies and the corrective actions implemented to prevent reoccurrence. 3.7. Partner will maintain complete and accurate records of its provision of Partner Services to Merchants, and will make such records available as soon as possible, but in no event later than three (3) business days, from the receipt of a request therefor from Elavon, Member, any Payment Network, or any governmental authority. 3.8. Partner will promptly notify Elavon if Partner engages a provider of cloud services in the provision of the Partner Services, and will cooperate with Elavon’s review of the Partner’s service and deployment model within that cloud environment. 4. LICENSE. Elavon hereby provides Partner with a nonexclusive, nontransferable and royalty free limited license to access and use, during the term of the Schedule B, those certain specifications related to the Elavon Network necessary to allow a Merchant or Partner to transmit the Merchant’s transactions to the Elavon Network in an acceptable format. The grant of such license is subject to Partner’s compliance with the terms and conditions of this Schedule B. The access rights to the Elavon Network specifications granted to Partner under this Schedule B are limited solely to access for Partner’s own internal business purposes in providing Partner Services to Merchants subject to the terms and conditions of this Schedule B. Partner and its personnel will not: (i) access or use the Elavon Network other than as permitted by this Schedule B or as authorized by Elavon; (ii) modify, reverse engineer, disassemble or decompile any software relating to the Elavon Network; (iii) knowingly transmit any data that contains software viruses, time bombs, worms, Trojan horses, spyware, disabling devices, malicious code or other harmful or deleterious computer code, files or programs to or through the Elavon Network; or (iv) interfere with or disrupt the servers or networks connected to the Elavon Network. 5. PAYMENT NETWORK REGISTRATION. If Payment Network Regulations require that a Partner’s Partner Services are registered to integrate with Elavon Systems, Partner will cooperate with Elavon in obtaining and maintaining such registration, and will provide Elavon and any Payment Network with all information requested by Elavon or the Payment Network. Partner’s obligation to register with the Payment Network may change if the Partner Services are modified or if the Payment Network Regulations are amended. Elavon will consult with Partner in good faith regarding whether any such registration is required, but if Elavon determines registration is required and Partner declines to be registered, Elavon will not allow access to the Elavon Network to the applicable Partner Services. Partner will not represent that registration of Partner with any Payment Network constitutes that Payment Network’s endorsement of Partner or its Partner Services. Partner 004741 AMENDMENT OF CONTRACT 004741 Page 8 will not take any action that could interfere with or prevent the right of any Payment Network to enforce its rights under Laws or Payment Network Regulations. 6. RESPONSIBILITY. Except as otherwise provided in Schedule D, if applicable, Partner is responsible for and will at its own expense, defend itself against all liabilities, losses, costs, damages, and expenses, including reasonable attorneys’ and accountants’ fees and the cost of a forensic audit, and any fees, fines, penalties or assessments charged by any Payment Network (collectively, “Losses”) in connection with claims, actions, demands or proceedings (made or threatened) brought by the Payment Networks or another third party (“Claims”) arising out of (i) Partner’s breach of or failure to comply with any of the terms of this Schedule B, Laws or Payment Network Regulations (including if caused by the actions or omissions of its subcontractors) or (ii) the gross negligence or willful misconduct of Partner, its employees, representatives or agents in performance of Partner’s obligations under this Schedule B. 004741 AMENDMENT OF CONTRACT 004741 Page 9 7. GENERAL TERMS. 7.1. Jurisdiction and Venue; Governing Laws. All matters arising out of or related to the Contract will be governed by and construed in accordance with the laws of the state of Michigan, without giving effect to its choice-of-law rules. Each party submits to the exclusive jurisdiction of the state and federal courts of Michigan and waives any objection to venue with respect to the actions brought in those courts. 7.2. Territory. This Schedule B and the relationship between Elavon, Member, and Partner created hereby are limited to the Territory. 004741 AMENDMENT OF CONTRACT 004741 Page 10 APPENDIX 1 TO SCHEDULE B: DEFINITIONS “Cardholder Data” has the meaning given to it in the Payment Card Industry (PCI) Data Security Standard (DSS) and Payment Application Data Security Standard (PA-DSS) Glossary of Terms, Abbreviations, and Acronyms, as amended. “Elavon” means, as applicable, Elavon, Inc. or Elavon Canada Company. “Elavon Network” means Elavon’s proprietary switch technology, operating systems, and applicable software platforms, including Elavon-controlled non-public network connectivity and interfaces for transmitting data. “Elavon Services” means the payment processing services provided by Elavon to Merchants pursuant to a Merchant Agreement. “Member” means a financial institution or other entity designated by Elavon that is a principal, sponsoring affiliate or other member of the Payment Network. The initial Member will be Elavon, Inc. or U.S. Bank National Association in the United States, and, in Canada, the Visa Member is U.S. Bank National Association, acting through its Canadian branch, the MasterCard Member is Elavon Canada Company, the Interac Member is Elavon Canada Company, and the Discover Network Member is Elavon Canada Company. “Merchant” means an end user customer that uses Elavon’s Services in the conduct of its business of selling goods or providing services to the public. “Laws” means all applicable local, state, and federal laws, legislation, statutes, rules, regulations, directives, ordinances, rules, and other binding law in effect from time to time. “Partner Services” means Partner’s products or services marketed and offered to Merchants as solutions for processing payments through the Payment Networks. “Payment Network” means Visa Inc., MasterCard International Incorporated, Discover Financial Services, American Express Company, Union Pay, or any other credit or debit card network. “Payment Network Regulations” means, individually and collectively, all rules, operating regulations, guidelines, specifications, and related or similar requirements of any Payment Network, as amended. “Security Programs” means the Payment Card Industry Data Security Standards (PCI-DSS), including the Account Information Security (AIS) of Visa, the Site Data Protection Program (SDP) of MasterCard, the Data Security DISC Program and the PCI-DSS regulations of Discover Network, and the security programs of any other Payment Network, and any modifications to, or replacements of, such programs. “Territory” means the United States of America. 004741 AMENDMENT OF CONTRACT 004741 Page 11 SCHEDULE C PARTNER SERVICES AGREEMENT This Partner Services Agreement (“Schedule C”) is entered into as of the Schedule C Effective Date by and between Elavon and the entity identified as Partner in the signature block below (“Partner”). Partner provides Partner Services to Customers. Partner provides Partner Services to end user merchant customers, certain of which are or may in the future be Merchants. Elavon provides the Elavon Services to Merchants. Elavon will provide Partner with access to the Elavon Services in consideration of Partner’s agreement to the terms of this Schedule C. Agreed and accepted, in consideration of the mutual promises, covenants and representations contained in this Schedule C, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged. OAKLAND COUNTY, MICHIGAN (“PARTNER”) By: Name: Title: Address for Notices: OAKLAND COUNTY PURCHASING 2100 Pontiac Lake Rd 41W Waterford, MI 48328-2762 ELAVON By: Name: Title: Date: (“Schedule C Effective Date”) Address for Notices: Two Concourse Parkway, Ste. 800 Atlanta, GA 30328 Attn: Partner Administration with a copy to: Chief Counsel - Elavon 1. DEFINED TERMS. Capitalized terms will have the meanings stated in the Contract or Appendix 1. 2. TERM AND TERMINATION. This Schedule C begins on the Schedule C Effective Date and will continue for the term of the Contract. Either party may terminate the Schedule C at the end of the term by providing the other party with at least ninety (90) days’ prior written notice of its intention not to renew. Either party may Timothy Miller (Apr 25, 2022 11:53 EDT) Timothy Miller Timothy Miller Senior Vice President Apr 25, 2022 Scott N. Guzzy (Apr 25, 2022 13:55 EDT) Scott N. Guzzy Scott N. Guzzy Purchasing Administrator 004741 AMENDMENT OF CONTRACT 004741 Page 12 terminate this Schedule C upon written notice to the other party if the other party (i) materially breaches the Schedule C and does not cure the breach within thirty (30) days of receiving written notice thereof or (ii) becomes or is declared insolvent or bankrupt (each event a termination for cause). Elavon may terminate this Schedule C immediately upon written notice to Partner if any Payment Network or Regulatory Authority requires Elavon to terminate this Schedule C. 3. PARTNER’S RESPONSIBILITIES. 3.1. Partner will not engage in any deceptive, misleading, illegal or unethical practices and will not make any representations, warranties or commitments on behalf of Elavon to any existing or prospective Customer. 3.2. Customers will use the Partner Services, which include Elavon Services, for credit and debit card processing. 3.3. Elavon will process Company Applications referenced in Amendment 02 of the Contract in accordance with its risk policies and other practices and procedures then in effect (which may be modified or amended by Elavon from time to time). Elavon reserves the right in its sole discretion to refuse to enter into a Merchant Agreement with any Customer. 3.4. Customers who become Partner Merchants will have a contractual relationship with Elavon and will enter into a Merchant Agreement. Partner will not be a party to any such Merchant Agreement and will have no rights or obligations thereunder. Elavon will administer and control the Merchant Agreements and the relationship between Elavon and a Partner Merchant solely with respect to the provision of the Elavon Services (such control including decisions regarding the continuance, amendment, assignment or termination of such Merchant Agreement). Partner retains control of the service fee pricing to the Merchant. 3.5. Partner will promptly notify Elavon if Partner receives any complaints from a Partner Merchant relating to the Elavon Services and will forward sufficient, timely and useable information regarding the complaint to Elavon to allow Elavon to respond appropriately and analyze and track complaint activity for risk management purposes. Elavon will have the sole right to respond to any Partner Merchant complaints relating to the Elavon Services. If Partner receives such a written complaint, the complaint must be forwarded to Partner’s Elavon account manager within two (2) days of Partner’s receipt of such complaint. If there is a verbal complaint, Partner must refer the Partner Merchant to Partner’s Elavon account manager. 4. FEES. 004741 AMENDMENT OF CONTRACT 004741 Page 13 4.1. Elavon will debit Partner monthly the fees as provided on Schedule 1 (“Fees”) for all Partner Merchants for which Partner is managing a direct deposit account for service fees associated with the Elavon Services (“Service Fee DDA”). Partner is solely liable for the payment of salaries, hourly wages or other compensation to any of Partner’s employees, agents, independent contractors, sales representatives or such other personnel engaged by Partner, and that Elavon will have no obligation for any such payment. 4.2. Partner must notify Elavon in writing of any suspected errors in the amount of Fees within forty- five (45) days from Partner’s payment of the applicable Fees for such Fees to be subject to adjustment. The notice must include: (i) Partner’s name; (ii) the amount of the asserted error; (iii) a description of the error; and (iv) an explanation of why Partner believes an error exists and the cause of it, if known. Elavon will promptly review and inform Partner, in writing, of the disposition of the asserted error. 4.3. If Partner is the subject of a suspension (including, as applicable, by regulatory order) by any Payment Network or governmental authority or has been dissolved administratively or otherwise, and such matter or issue is not cured within ninety (90) days following Partner’s receipt of written notice thereof, then Elavon reserves the right to terminate the Contract upon notice to Partner. 5. ADDITIONAL CONFIDENTIALITY AND SECURITY PROVISIONS. 5.1. Partner will not disclose any Partner Merchant information unless otherwise permitted to do by the applicable Partner Merchant in writing. Nothing in this Schedule C prohibits Partner from using or disclosing any data that Partner collects from merchants unrelated to Partner obligations under this Schedule C (i.e., as part of Partner’s sale of goods and services, other than Merchant Services, to merchants). 5.2. Partner will implement and maintain appropriate administrative, technical, and physical measures to safeguard all Confidential Information, including Partner Merchant information, and to prevent unauthorized intrusion into Partner’s systems. 5.3. Elavon may grant Partner access to reports or internal systems containing information pertaining to Partner Merchants so that Partner can evaluate the Merchant program. Partner represents and warrants that: (i) Partner has secured written consent from the Partner Merchants for the sharing of such information; (ii) any information Partner obtains regarding a Partner Merchant is Elavon’s Confidential Information and Partner will treat this information with the same standard of care and discretion it employs with similar information of its own and in accordance with Section 3 of the Third Party Agent Agreement; (iii) Partner will not disclose any such information unless permitted to do so by the applicable Partner Merchant in writing; and (iv) Partner will maintain the security of all passwords and identification information it receives from Elavon. Partner acknowledges that Elavon can rescind Partner’s access to Elavon’s systems upon written notice. 004741 AMENDMENT OF CONTRACT 004741 Page 14 Nothing herein prohibits Partner from using or disclosing any data that Partner collects from Partner Merchants unrelated to this Schedule C. 6. USE OF MARKS; PUBLICITY. 6.1. Partner is not permitted to reproduce or use the trade name, trademarks, service marks or logos of Elavon (the “Elavon Marks”) for any purpose other than the promotion of the Elavon Services without Elavon’s express prior written consent. Any marketing material prepared by Partner must clearly disclose that the Merchant Agreement is by and between Elavon and the Partner Referred Merchant. Partner may use and display the Elavon Marks only in the form approved by Elavon in writing, which Elavon may amend from time to time. If applicable, Elavon may provide written branding standards and requirements with respect to the use of Elavon Marks, and Partner will comply with all such branding standards and requirements. Upon the termination or expiration of this Schedule C or the earlier request of Elavon, Partner will return all written or electronic manifestations of the Elavon Marks to Elavon or destroy them, as directed by Elavon. 6.2. Except as provided herein, neither party may issue any press release or make any public announcement relating to this Schedule C or its subject matter without the advance written approval of the other party. Partner acknowledges that it may be requested by Elavon to participate in case studies, white papers, and to provide written or video testimonials or referrals to Elavon, and upon such agreement Partner may request prior approval over any such Partner- provided content and Partner trademarks used therein before publication to third parties. 7. RESPONSIBILITY; LIMITATION OF LIABILITY. 7.1. Partner is responsible for and will at its own expense, defend itself against all liabilities, losses, fines, penalties, taxes, duties, costs, and expenses, including reasonable attorneys’ legal and accountants’ fees (collectively, “Losses”) in connection with claims, actions, audits, assessments, demands or proceedings (made or threatened) brought by a third party (“Claims”) arising out of (i) Partner’s breach of or failure to comply with any of the terms of this Contract (including if caused by the actions or omissions of its subcontractors) or (ii) the gross negligence or willful misconduct of Partner, its employees, representatives or agents in performance of Partner’s obligations under this Contract. 7.2. Elavon is responsible for and will at its own expense, defend itself against all Losses in connection with Claims arising out of (i) Elavon’s breach of or failure to comply with any of the terms of this Contract (including if caused by the actions or omissions of their subcontractors), or (ii) the gross negligence or willful misconduct of Elavon or Member (or their respective employees, representatives or agents) in the performance of their obligations under this Contract. 004741 AMENDMENT OF CONTRACT 004741 Page 15 8. COMPLIANCE WITH LAWS. Each Party will comply with all applicable Laws and Payment Network Regulations. 004741 AMENDMENT OF CONTRACT 004741 Page 16 APPENDIX 1 TO SCHEDULE C: ADDITIONAL DEFINITIONS “Customer” means an end user customer that uses Partner Services in the conduct of its business of selling goods or providing services to the public. “Merchant Agreement” means the agreement between Elavon and Merchant for payment processing services. “Partner Merchant” means a Customer referred to Elavon by Partner for receipt of the Elavon Services during the Term that enters into a Merchant Agreement. “Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over Elavon. 004741 AMENDMENT OF CONTRACT 004741 Page 17 SCHEDULE 1 TO SCHEDULE C – FEES • Interchange Pass Through: Card Types Rate Per Item V/MC/Discover Network Cards 0.08 % $0.08 • Other Fees: Fee Type Amount Occurrence Application Fee $0.00 One-time fee Application Fee – Home Based and or Internet 0.00 One-time fee Re-programming Fee 0.00 One-time fee Installation/Training Fee $0.00 Per occurrence Next Day Air (rush request) $40.00 One-time Occurrence Monthly Minimum Discount Fee $0.00 Per Month Statement Fee $0.00 Per Month Voice/ARU Authorization $0.65 Per Authorization Voice/ARU Operator Assisted $1.00 Per Authorization Voice/ARU Authorization w/AVS $1.00 Per Occurrence Voice Referral $1.00 Per Occurrence Account Closure (Year 1) $0.00 Per Occurrence Account Closure (Years 2 & 3) $0.00 Per Occurrence Chargebacks $5.00 Per Occurrence Equipment Swap Shipping (Year 1 of Purchase) $0.00 Per Occurrence Equipment Swap (Year 2 or after) $0.00 Per Occurrence Imprinter $0.00 Per Device Return Item/Adjustment Fee $5.00 Per Occurrence Supplies Pass Thru Per Occurrence ACS $19.95 Per Month EBT N/A Per Transaction PIN-Based National Debit $0.65 Per Authorization PIN Based Regional Debit $0.65 Per Authorization SCAN N/A Per Authorization 004741 AMENDMENT OF CONTRACT 004741 Page 18 SCHEDULE D REQUIREMENTS FOR CONTRACTORS WITH ACCESS TO COUNTY PERSONAL INFORMATION This Schedule governs the requirements for Contractors (Elavon) with access to Personal Information (PI). “Contractor” as referenced herein means Elavon. 1. DEFINITIONS 1.1 Cardholder Data has the meaning in the Payment Card Industry (PCI) Data Security Standard (DSS) and Payment Application Data Security Standard (PA-DSS) Glossary of Terms, Abbreviations, and Acronyms. 1.2 Elavon Security Breach means unauthorized access to, use, disclosure, or exfiltration of any PI (defined below) provided by County and received by Elavon that originated within the data operating systems controlled by Elavon, was not attributable to any act or omission of the County or a Public Body or their service providers, and does not relate to data provided in user defined fields not required by Elavon or used by Elavon to perform its services. 1.3 PI (Personal Information) means Cardholder Data, Transaction Information, and the first name or first initial and last name linked to one or more of the following data elements of a resident of the State of Michigan: (i) Social security number. (ii) Driver license number or state personal identification card number. (iii) Demand deposit or other financial account number, or credit card or debit card number, in combination with any required security code, access code, or password that would permit access to any of the resident's financial accounts. 1.4 Transaction Information means any data or information resulting from a Transaction. Transaction Information includes payment processing-related transactional information that may be collected or stored by Elavon, including the price paid for products or services, date, time, approval, unique transaction number, store identifier, and customer bank information relating to a Transaction. 2. OBLIGATIONS 2.1 Contractor shall not use or disclose PI other than as permitted or required by this Contract or as required by law. 2.2 Contractor shall implement administrative, physical, and technical safeguards (including written policies and procedures) that reasonably and appropriately protect the confidentiality, integrity, and availability of PI that it receives, maintains or transmits on behalf of the County. 2.3 Contractor shall mitigate, to the extent practicable, any harmful effect known to Contractor of the use or disclosure of PI in violation of law or this Contract. 2.4 If required pursuant to applicable laws, including but not limited to MCL 445.72, Contractor will provide County with notice of an Elavon Security Breach. Contractor will provide such notice within 004741 AMENDMENT OF CONTRACT 004741 Page 19 the timeframes provided under MCL 445.72(4) or any other applicable laws. The notification to the County shall include the following: (a) describe the Elavon Security Breach in general terms; (b) describe the type of PI that is the subject of the Elavon Security Breach; (c) to the extent Elavon has access to such information, the identify of each individual whose PII has been breached or has reasonably believed to have been breached; (d) describe in general terms, what Contractor has done to prevent additional Elavon Security Breaches; and (d) provide any other available information in Contractor or subcontractor’s possession that is required to comply with MCL 445.72 or other applicable laws. 2.5 If the County is required to provide notice of the Elavon Security Breach to the affected individuals and/or to governmental authorities under applicable laws, including but not limited to MCL 445.72 (if notice is not otherwise provided by the Payment Networks under MCL 445.72(9)), Contractor shall reimburse the County, up to the Elavon Security Breach Losses amount (defined below), for its documented and incurred: (a) costs in notifying the affected individuals; (b) the cost of third-party credit and identity monitoring services to each of the affected individuals with compromised unencrypted and unredacted PI for no less than twelve (12) months following the date of notification to each individual; and (c) reasonable third party costs associated with the Elavon Security Breach, including but not limited to any reasonable third party costs incurred by the County in investigating and resolving the Elavon Security Breach. Without limiting any of Contractor's other obligations, Contractor shall indemnify, defend, and hold harmless the County for any and all third party claims, including reasonable attorneys' fees and costs, which may be accrued against, charged to, or recoverable from the County in connection with the Elavon Security Breach up to the Elavon Security Breach Losses amount. Elavon Security Breach Losses will not exceed the greater of the following: 1) twelve (12) months’ average fees paid to Elavon by the County (exclusive of fees and variable costs incurred by Elavon to process Transactions such as interchange costs, assessments, charges and fees imposed by a third party); or 2) one million dollars ($1,000,000). 2.6 Within a reasonable time period after notification of an Elavon Security Breach, Contractor shall provide the County with a general plan describing the measures Contractor will undertake to prevent a future Elavon Security Breach. 004741 AMENDMENT OF CONTRACT 004741 Page 20 SCHEDULE E CONTRACTOR INSURANCE REQUIREMENTS During this Contract, the Contractor shall provide evidence of and maintain, at Contractor’s own expense, all insurance as set forth and marked below, protecting the County against Claims, as defined in this Contract. The insurance shall be written for not less than any minimum coverage herein specified. Limits of insurance required in no way limit the liability of the Contractor. “Contractor” as referenced herein means Elavon. Primary Coverages Commercial General Liability Occurrence Form including: (a) Premises and Operations; (b) Products and Completed Operations (including On and Off Premises Coverage); (c) Personal and Advertising Injury; (d) Broad Form Property Damage; (e) Broad Form Contractual including coverage for obligations assumed in this Contract; $1,000,000 – Each Occurrence Limit $1,000,000 – Personal & Advertising Injury $2,000,000 – Products & Completed Operations Aggregate Limit $2,000,000 – General Aggregate Limit $ 100,000 – Damage to Premises Rented to You (formally known as Fire Legal Liability) Workers’ Compensation Insurance with limits statutorily required by any applicable Federal or State Law and Employers Liability insurance with limits of no less than $500,000 for each accident, $500,000 for a disease for each employee, and $500,000 for a disease policy limit. Contractor must comply with one of the following: 1. Be a Fully Insured or State approved self-insurer; 2. Sole Proprietors must submit a signed Sole Proprietor form; or 3. Exempt entities, Partnerships, LLC, etc., must submit a State of Michigan form WC-337 Certificate of Exemption. Evidence of workers’ compensation insurance is not necessary if neither Contractor nor any Contractor Employees come onsite to any County real property, land, premises, buildings, or other facilities in the performance of this Contract. Commercial Automobile Liability Insurance covering bodily injury or property damage arising out of the use of any owned, hired, or non-owned automobile with a combined single limit of $1,000,000 each accident. This requirement is waived if there are no company owned, hired or non-owned automobiles utilized in the performance of this Contract. Commercial Umbrella/Excess Liability Insurance with minimum limits of $2,000,000 each occurrence. This 004741 AMENDMENT OF CONTRACT 004741 Page 21 coverage shall be in excess of the scheduled underlying General Liability, Automobile Liability, and Employer’s Liability Insurance policies with exclusions that are not broader than those contained in the underlying policies. This Umbrella/Excess requirement may be met by increasing the primary Commercial General Liability limits to meet the combined limit requirement. Supplemental Coverages. The following supplemental coverages are required if selected (checked): 1. ☒ Professional Liability/Errors & Omissions Insurance (i.e., Consultants, Technology Vendors, Architects, Engineers, Real Estate Agents, Insurance Agents, Attorneys, etc.) with minimum limits of $1,000,000 per claim and $1,000,000 aggregate. 2. ☒ Cyber Liability Insurance with minimum limits of $1,000,000 per claim and $1,000,000 aggregate. General Insurance Conditions The aforementioned insurance shall be endorsed, as applicable, and shall contain the following terms, conditions, and/or endorsements. All certificates of insurance shall provide evidence of compliance with all required terms, conditions and/or endorsements. 1. The required General Liability and Automobile Liability policies of insurance shall be on a primary, non- contributory basis with any other insurance or self-insurance carried by the County; 2. The insurance company(s) issuing the required General Liability and Automobile Liability policy(s) shall have no recourse against the County for subrogation (policy endorsed written waiver), premiums, deductibles, or assessments under any form. The required General Liability and Automobile Liability policies shall be endorsed to provide a written waiver of subrogation in favor of the County; 3. Any and all deductibles or self-insured retentions shall be assumed by and be at the sole risk of the Contractor; 4. Contractor shall be responsible for their own property insurance for all equipment and personal property used and/or stored on County property; 5. The Commercial General Liability and Commercial Automobile Liability policies along with any required supplemental coverages shall be endorsed to name the County of Oakland and it officers, directors, employees, appointees, and commissioners as additional insured where permitted by law and policy form; 6. If the Contractor’s insurance policies have higher limits than the minimum coverage requirements stated in this document the higher limits shall apply and in no way shall limit the overall liability assumed by the Contractor under contract. 7. The Contractor shall require its contractors or sub-contractors, not protected under the Contractor’s insurance policies, to procure and maintain insurance with coverages, limits, provisions, and/or clauses commensurate to the services they provide; 004741 AMENDMENT OF CONTRACT 004741 Page 22 8. Certificates of insurance must be provided prior to the County’s execution of the Contract and must bear evidence of all required terms, conditions and endorsements; and the required General Liability and Automobile Liability, and Workers Compensation policies shall provide thirty (30) days’ written notice of cancellation endorsement to the insurance coverages required by this Exhibit. 9. All insurance carriers must be licensed and approved to do business in the State of Michigan along with the Contractor’s state of domicile and shall have and maintain a minimum A.M. Best’s rating of A- unless otherwise approved by the County Risk Management Department. 004741 AMENDMENT OF CONTRACT 004741 Page 23 SCHEDULE F SECOND ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL COMPANIES The following provisions hereby replace the like-numbered provisions of the Terms of Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies operating under the Agreement. Capitalized terms used and not otherwise defined in this Addendum shall have the meanings ascribed to them in the Agreement or the Operating Guide. 1) Section 5.4(c) is revised to read as follows: “Return to Elavon. Unless Company is required by law to retain any record, information, document, or other material, all Confidential Information, promotional materials, advertising displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms supplied to Company and not purchased by Company or consumed in use will remain the property of Elavon and must be returned to Elavon or destroyed within 10 business days after termination of the Agreement. Unless Company is required by law to retain any record, information, document, or other material, Company will be fully liable for all loss, cost, and expense suffered or incurred by Elavon arising out of any failure to return or destroy such materials following termination.” 2) Section 9.2(e)(iii) is revised to read as follows: “Liability for Data Incident. Without waiving any of Elavon’s rights and remedies, Company is liable for all fraudulent transactions related to any Data Incident and all costs Elavon incurs as a result of such Data Incident, including all (i) fees, fines, penalties or assessments by the Payment Networks, and (ii) costs related to the notification of Cardholders or Customers, cancellation of Payment Devices (including underlying accounts), re-issuance of Payment Devices (including underlying accounts), forensic investigation, and PCI- DSS review for a report of compliance.” 1 USA-GOV-- N E W A P P L I C A T I O N - G O V E R N M E N T / I N S T I T U T I O N A L 1 COMPANY INFORMATION DBA NAME: CONTACT NAME: DBA ADDRESS TYPE:DBA ADDRESS1 (NO PO BOX): DBA ADDRESS 2: CITY:STATE ZIP CODE: DBA PHONE #:DBA FAX #: DATE FOUNDED:MOBILE PHONE #: EMAIL ADDRESS: CIP EXEMPTION: 2 OTHER ADDRESS (IF DIFFERENT THAN ABOVE ) MAILING SHIPPING SEE ALSO SPECIAL INSTRUCTIONS (MORE THAN ONE OPTION MAY BE SELECTED) LOCATION NAME:PHONE #: CONTACT:FAX #: ADDRESS:CITY:STATE:ZIP CODE: STATEMENTS/ RETRIEVALS /CHARGEBACKS STATEMENTS:DBA OR MAILING OR W-9 AUTO SEND:YES NO (CHAIN COMPANIES ONLY –MUST INCLUDE CHAIN SET UP FORM) RETRIEVALS:ONLINE CASE MANAGEMENT (OCM)OR EMAIL TO:OR FAX TO:DBA MAILING OR MAIL TO:DBA MAILING CHARGEBACKS:ONLINE CASE MANAGEMENT (OCM)OR EMAIL TO:OR FAX TO:DBA MAILING OR MAIL TO:DBA MAILING 3 CONTACT INFORMATION (AUTHORIZED REP) OFFICER MANAGER AUTHORIZED REPRESENTATIVE OTHER: FIRST NAME:MN:LAST NAME: TITLE:US PERSON: CONTACT ADDRESS (NO PO BOX):ADDRESS TYPE: CITY:STATE:ZIP CODE: DOB:CONTACT PHONE #: INDIVIDUAL ID EXEMPTION CLASS:GOVERNMENT FEDERAL STATE LOCAL (POLITICAL SUBDIVISION OF A US STATE) OTHER COMPANY INFORMATION AVERAGE SALE AMOUNT: $ CARD PRESENT 100%OMNI COMMERCE (MUST TOTAL 100%) HIGH SALE AMOUNT: $ CARD NOT PRESENT 100%CARD PRESENT % NUMBER OF HIGH SALES TRANSACTIONS ANNUALLY:INTERNET 100%CARD NOT PRESENT*% TOTAL MONTHLY VISA/MC/AMEX/DISC/UNIONPAY SALES: $ OMNI COMMERCE INTERNET * % ANNUAL TOTAL REVENUE: (CASH, CHECK, CARD) $INTERNET :PRODUCT WEBSITE: INDUSTRY TYPE: DESCRIPTION OF PRODUCT/SERVICES OFFERED:INTERNET:“CONTACT US”EMAIL: SPECIAL PROGRAM MCC ONLY:*CUSTOMER SERVICE PHONE #AND PREVIOUS PROCESSOR REQUIRED BELOW WHEN DOES THE CUSTOMER RECEIVE THE PRODUCT OR SERVICE? IF NOT SAME DAY, #OF DAYS (INCLUDE SHIPPING TIME FRAME) CUSTOMER SERVICE PHONE #: PREVIOUS PROCESSOR: IF SEASONAL,PLEASE CHECK MONTHS CLOSED BELOW.(CUSTOMER MUST CONTACT CUSTOMER SERVICE TO DEACTIVATE AND REACTIVATE ACCOUNT) JANUARY FEBRUARY MARCH APRIL MAY JUNE JULY AUGUST SEPTEMBER OCTOBER NOVEMBER DECEMBER BANK ACCOUNT (CHECKING ACCOUNTS ONLY) DEPOSIT BANK NAME:ABA/ROUTING #:DDA ACCOUNT #: BILLING/CHARGEBACK BANK NAME (IF DIFFERENT):ABA/ROUTING #:DDA ACCOUNT #: CHARGEBACK BANK NAME (IF DIFFERENT THAN BILLING):ABA/ROUTING #:DDA ACCOUNT #: FUNDING OPTIONS:MONTHLY FEE $ TAPE ID (OPT): SCHEDULE G – APPLICATION 2 CARD ACCEPTANCE (PLEASE CHECK EACH CARD YOU WISH TO ACCEPT)PRICING CATEGORY ALL VISA/MASTERCARD/AMEX/UNIONPAY/ DISCOVER(JCB, DI, PAY PAL PAYMENT DEVICE)/ WITH PIN/ PINLESS DEBIT PIN DEBIT PINLESS DEBIT ALL VISA/MASTERCARD/AMEX/UNIONPAY/ DISCOVER(JCB, DI, PAY PAL PAYMENT DEVICE) VISA CREDIT VISA DEBIT MC CREDIT MC DEBIT DISCOVER (JCB, DI ,PAY PAL PAYMENT DEVICE )UNIONPAY AMEX PIN DEBIT PINLESS DEBIT RETAIL RESTAURANT LODGING SUPERMARKET MO/TO / INTERNET ARU OMNI COMMERCE (TIERED & EICP ONLY) PRICING INFORMATION FEES PRICING PROGRAM: (FIXED ONLY) VISA/MASTERCARD/UNIONPAY/ DISCOVER CARDS (JCB, DI,PAY PAL PAY DEVICE**) AMERICAN EXPRESS OPT BLUE PIN//PINLESS DEBIT*** APPLICATION $ RATE* PER ITEM*RATE PER ITEM RATE PER ITEM INSTALLATION/TRAINING $TIEREDQUALIFIED % $ % $ % $ REPORTING & SUPPORT PACKAGE (PER MONTH)$ MID QUALIFIED % $ % $ MONTHLY MINIMUM $ NON QUALIFIED % $ % $ CHARGEBACK (PER OCCURRENCE)$ STANDARD % $ % $RETURN ITEM/NSF (PER OCCURRENCE)$ OPT.CHECK CARD SPRMKT QPS/SMALL TKT OTHER:$ STATEMENT:ELECTRONIC OR PAPER $10OPT. REWARDS % $ MONTHLY STATEMENT MAILING(PAPER STATEMENTS ONLY) OPT. COMMERCIAL CARD % $ RUSH SHIPMENT $ INTERCHANGE PLUS % $ % $ % $ $ PIN/PINLESS DEBIT ENABLEMENT SERVICE FEE $ENHANCED ICPLUSCHECK CARD QUALIFIED % $ OTHER: QUALIFIED % $ % $% $ REWARDS QUALIFIED % $AUTHORIZATIONS MID QUALIFIED % $ % $ VISA (PER AUTH)$ VOICE - ARU (PER AUTH)$ COMMERCIAL NON QUALIFIED % $MASTERCARD (PER AUTH)$VOICE OPERATOR (PER AUTH)$ NON QUALIFIED % $ % $ DISCOVER (PER AUTH)$VOICE - AVS (PER AUTH)$ FIXED -PRICING PGM: % $ % $ UNIONPAY (PER AUTH)$ VOICE BANK REF (PER AUTH)$*RATES ARE FOR ALL CARD ACCEPTANCE TYPES SELECTED.ALL CARD BRAND ASSESSMENTS WILL BE PASSED THROUGH AT COST. **PAYPAL ACCEPTANCE AND RATES ARE BASED ON CARD PRESENT TRANSACTIONS ONLY. ***PIN/PINLESS DEBIT RATE WILL BE OPTIMIZED AVAILABLE RATE AMEX OPT BLUE (PER AUTH)$ SECURITY PROGRAMS AMEX PUBLIC SECTOR (TPSP)(PER AUTH)$ DIAL COMMUNICATION (PER AUTH)$ SECURITY PROGRAM (PER MONTH): Please see pricing for the Security Program you have selected in the Company Representations and Certifications below. PIN/PINLESS DEBIT (PER AUTH)$ INTERNATIONAL CARD HANDLING FEE (RATE): (CHARGED ON VISA, MC, DISCOVER,AMEX)% OTHER CARD TYPES EXISTING AMEX SE #(10 DIGITS):PER AUTH: $ EBT SE #(7 DIGITS):PER AUTH: $ AMERICAN EXPRESS PUBLIC SECTOR (TPSP) COMPANY IS ELIGIBLE FOR AMERICAN EXPRESS PUBLIC SECTOR (TPSP)AND ACCEPTS COMPANY IS ELIGIBLE FOR AMERICAN EXPRESS PUBLIC SECTOR (TPSP)BUT DECLINES ACCEPTANCE INDUSTRY TYPE: PRICING INFORMATION FOR AMERICAN EXPRESS PUBLIC SECTOR (TPSP) TIERED RATE PER ITEM ENHANCED ICPLUS RATE PER ITEM QUALIFIED %$QUALIFIED %$ MID QUALIFIED %$MID QUALIFIED %$ NON QUALIFIED %$NON QUALIFIED %$ INTERCHANGE PLUS %$ USA-GOV-- 3 POINT OF SALE (EQUIPMENT OR SOFTWARE) NETWORK:ELAVON OTHER A THIRD PARTY INTEGRATOR WILL BE USED FOR IMPLEMENTATION: VAR SERVICE PROVIDER (HOSTED): VAR (DISTRIBUTED): VENDOR: PRODUCT: VERSION: #OF TIDS TID TYPE OMNI ONLY: #OF TIDS TID TYPE OMNI ONLY: PURCHASE/SETUP SOFTWARE/WIRELESS QTY POSDESCRIPTION ITEM CODE TID TYPE OMNI ONLY TERMINAL ENCRYPT OWNS REPROG FEE PER UNIT PRICE PER UNIT ANNUAL FEE PER UNIT MONTHLY FEE PER UNIT PER AUTH FEE $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ ALL APPLICABLE STATE AND LOCAL TAXES WILL BE APPLIED.SALES TAX EXEMPT Elavon and Member have no responsibility for, and shall have no liability to Company in connection with, any hardware or software, or any related services, Company receives under a direct agreement (including any sale, warranty or end-user license agreement) between Company and a third party, including any Value Added Servicer, even if Elavon collects fees or other amounts from Company with respect to such hardware, software or services. ADDITIONAL POS SERVICES: DESCRIPTION SETUP FEE ANNUAL FEE MONTHLY FEE PER AUTH FEE $$$$ $$$$ TERMINAL PROGRAMING INSTRUCTIONS (DO NOT USE FOR CONVERGE –THIS INFORMATION IS COVERED DURING TRAINING) RETAIL (AUTO CLOSE DEFAULT)QUICK CLOSE STORE AND FORWARD NO SIGNATURE CONTACTLESS (+ NO SIGNATURE) RESTAURANT (QUICK CLOSE DEFAULT)TIP FUNCTION (DEFAULT)FINE DINING TAB FUNCTION CARD NOT PRESENT (AUTO CLOSE DEFAULT)QUICK CLOSE LODGING (QUICK CLOSE D EFAULT)QUICK STAY SEMI INTEGRATED CUSTOM PROMPTS:TERMINAL AUTO CLOSE (RTL,MOTO)TIME ZONE CASH BACK PIN DEBIT (RTL):$(MAX)CUSTOM FOOTER: NOTIP (REST)NO SERVER PROMPT (REST)CLERK PROMPT (RTL)TIP FUNCTION W AITER (RTL)TIP FUNCTION CASHIER (RTL) COMMUNICATION METHOD (IP DEFAULT):DIAL TRAINING (DEFAULT = TRAINING REQUIRED):NO TRAINING PHONE INFORMATION:ACCESS #: REPORTING TOOLS MCP ONLY OR MCP WITH OCM MONTHLY FEE $SET UP FEE $# USERS SET UP TYPE (CHECK ONE)MID CHN ACS MONTHLY FEE $SET U P FEE $REMOTE ID OTHER VAS 3D Secure Per Occurrence: $ USA-GOV-- 4 ELECTRONIC CHECK AND ACHPROCESSING AND SERVICE OPTIONS ANNUAL CHECK VOLUME:$MAXIMUM CHECK AMOUNT:$ AVERAGE CHECK AMOUNT:$MONTHLY MINIMUM: $ ECS-PAPER CHECK CONVERSION ACH ECHECK –CARD NOT PRESENT (CNP) PROCESSING OPTIONS:PROCESSING OPTIONS: POP – POINT OF PURCHASE ARC – ACCOUNTS RECEIVABLE CONVERSION BOC – BACK OFFICE CONVERSION CONCURRENT ENROLLMENT (INCLUDES:WEB,TEL, PPD AND CCD) = XNP INDIVIDUAL ENROLLMENT -CHOOSE ONE (ONE PER MID) WEB – INTERNET INITIATED ENTRIES TEL/IVR – TELEPHONE INITIATED ENTRIES PPD – PREARRANGED PAYMENT ENTRIES CCD – CORPORATE TO CORPORATE ENTRIES CONVERGE SETUPS WILL BE CONCURRENTLY ENROLLED IN ALL PRODUCT TYPES = XNP SERVICE: SERVICE: CONVERSION WITH GUARANTEE DISCOUNT RATE: %PER TRANSACTION:$ PER RETURN TRANSACTION:$ ACH-ECHECK WITH VERIFICATION DISCOUNT RATE: %PER TRANSACTION:$ PER RETURN TRANSACTION:$ CONVERSION WITH VERIFICATION OR CONVERSION ONLY DISCOUNT RATE: % PER TRANSACTION:$ PER RETURN TRANSACTION:$ ACH-ECHECK CONVERSION ONLY DISCOUNT RATE: %PER TRANSACTION:$ PER RETURN TRANSACTION:$ Other ECS Check Conversion Service Requests PROMPTS FOR DRIVER’S LICENSE NUMBER, STATE OF LICENSE ISSUANCE AND TELEPHONE NUMBER (REQUIRED FOR GUARANTEE SERVICE) ACH-Echeck Questionnaire 1. What types of payments will you accept using ACH-Echeck (e.g., utility bill payments, monthly rent payments, monthly billing for general services)? 2. Will you obtain authorization from your customers prior to accepting an ACH entry in accordance with the ECS MOG (e.g., orally via telephone for tel/ivr, or in writing for ppd)? Yes No 3. Will you verify and authenticate the identity of your customers in accordance with the ECS MOG prior to initiating ACH entries for those customers (e.g., by obtaining a customer’s name, address and telephone number or using a database to verify the accuracy of the information provided by customer)? Yes No 4. Will you offer ACH-Echeck to existing or new customers?Existing New 5.Will you maintain and disclose to your customers procedures for cancelling an authorization? Yes No 6.Will you ensure that information regarding each transaction authorization entered by a customer and/or your service representative is accurate and not a duplicate transaction? Yes No USA-GOV-- 5 CONVENIENCE FEE AND GOVERNMENT/PUBLIC INSTITUTION SERVICE FEES (GPISF) CONVENIENCE FEE SERVICES PROGRAMS GPISF SERVICES PROGRAMS (CHECK ALL THAT APPLY,BUT ONLY IF COMPANY ELECTS GPISF ASSESSMENTS: COMPANY-MANAGED SERVICE FEE4 CONVENIENCE FEE FUNDING MODEL (CHECK ONE):COMPANY-MANAGED WITH ELAVON POS DEVICES/SERVICE FEE TERMINALS5 COMPANY MANAGED CONVENIENCE FEE1 ELAVON-MANAGED SERVICE FEE6 ELAVON MANAGED CONVENIENCE FEE2 PARTNER MANAGED SERVICE FEE7 PARTNER MANAGED CONVENIENCE FEE3 CARD ACCEPTANCE (CHECK ALL THAT APPLY): PAYMENT TRANSACTION TYPES POINT OF SALE INTERNET CREDIT (CHECK ALL THAT APPLY):IVR OTHER: VISA MASTERCARD DISCOVER AMERICAN EXPRESS PS GPISF SERVICES PROGRAMS (CHECK ALL THAT APPLY,BUT ONLY IF COMPANY ELECTS GPISF ASSESSMENTS: SIGNATURE DEBIT (CHECK ALL THAT APPLY): MASTERCARD GOVERNMENT AND EDUCATION PAYMENT PROGRAM VISA GOVERNMENT AND EDUCATION PAYMENT PROGRAM AMERICAN EXPRESS GOVERNMENT AND EDUCATION PAYMENT PROGRAM DISCOVER GOVERNMENT AND EDUCATION PAYMENT PROGRAMVISAMASTERCARDDISCOVER PIN-BASED DEBIT PINLESS DEBIT TRANSACTION TYPES: ACH (VIA ELECTRONIC CHECK SERVICES) FEDERAL INCOME TAX GOVERNMENT FEES STATE INCOME TAX REAL ESTATE PROPERTY TAX BUSINESS TAX OTHER TAX TUITION OTHER EDUCATION EXPENSES ELAVON PRODUCT SUPPORTING ELAVON-MANAGED CONVENIENCE FEE ASSESSMENT TO BE USED BY COMPANY (CHECK ALL THAT APPLY): PAYCENTRIC BILL PAY SERVICES (ADDITIONAL ENROLLMENT FORM REQUIRED): PAYMENT TYPES FOR GPISF ASSESSMENT (NOT ALL PAYMENT TYPES ARE SUPPORTED FOR ALL PROGRAMS)(CHECK ALL THAT APPLY,BUT ONLY IF COMPANY ELECTS GPISF ASSESSMENT): COMPANY PROPRIETARY SOLUTION OR VALUE-ADDED SERVICER CREDIT – (CHECK ALL THAT APPLY): OTHER: VISA – ELIGIBLE MCCS: 8211, 8220, 8244, 8249, 9211, 9222, 9311, 9399 CONVENIENCE FEE PRICING:MASTERCARD – ELIGIBLE MCCS: 8211, 8220, 8299, 9211, 9222, 9223, 9311, 9399,9402 DISCOVER (AVAILABLE IF ELAVON-ACQUIRED) AMERICAN EXPRESS PS – ELIGIBLE MCCS: 8211, 8220, 8244, 8249, 9211, 9311, 9399, 9222CONVENIENCE FLAT FEE AMOUNT:$ CONVENIENCE FEE %: (MASTERCARD, DISCOVER & ACH PROGRAMS ONLY) SIGNATURE DEBIT – (CHECK ALL THAT APPLY) IMPLEMENTATION FEE (IF APPLICABLE):$VISA – ELIGIBLE MCCS: 8211, 8220, 8244, 8249, 9211, 9222, 9311, 9399 MASTERCARD – ELIGIBLE MCCS: 8211, 8220, 8299, 9211, 9222, 9223, 9311, 9399,9402 DISCOVER (AVAILABLE IF ELAVON-ACQUIRED) ACH (VIA ELECTRONIC CHECK SERVICES) ELAVON PRODUCT SUPPORTING GPISF ASSESSMENT TO BE USED BY COMPANY (CHECK ALL THAT APPLY): PAYCENTRIC BILL PAY SERVICES (ADDITIONAL ENROLLMENT FORM REQUIRED): SERVICE FEE TERMINAL COMPANY PROPRIETARY SOLUTION OR VALUE-ADDED SERVICER SAFE-T SERVICES (ADDITIONAL ENROLLMENT FORM REQUIRED) OTHER: GPISF PRICING: CREDIT CARD SERVICE FEE:%OR $ SIGNATURE DEBIT SERVICE FEE:%OR $ ACH (VIA ELECTRONIC CHECK SERVICES):$ IMPLEMENTATION FEE (IF APPLICABLE):$ 1 “Company-Managed” Convenience Fee means that Company establishes the amount of the Convenience Fee (subject to the requirements of the Agreement and applicable Payment Network Regulations) and retains the Convenience Fee. Company pays Elavon the per transaction fees as set forth in this application to the Agreement for all Convenience Fee Transactions. 2 “Elavon- Managed” Convenience Fee means that Elavon establishes the amount of the Convenience Fee and retains the Convenience Fee in lieu of Company’s obligation to pay Elavon the per transaction fees as set forth in this application to the Agreement for Convenience Fee Transactions. The Convenience Fee is still charged by Company and included in the overall transaction amount charged to the Cardholder. 3 “Partner- Managed” Convenience Fee means that Sales Partner (a Sales Partner is a registered third party sales organization selling Elavon services) establishes the amount of the Convenience Fee (subject to the requirements of the Agreement and applicable Payment Network Regulations) as set forth in this application to the Agreement. Elavon will retain the Convenience Fee in lieu of Company’s obligation to pay Elavon the per transaction fees as set forth in this application to the Agreement. The Convenience Fee is still charged by Company and included in the overall transaction amount charged to the Cardholder. 4 “Company-Managed” Service Fee means that Company establishes the amount of the GPISF, programs its POS Devices to assess the GPISF, and retains the GPISF (subject to the requirements of the Agreement and applicable Payment Network Regulations). Company pays Elavon the per transaction fees as set forth in this application for all GPISF Transactions. 5 “Company-Managed with Elavon POS Devices/Service Fee Terminals” means that Elavon programs the POS Devices to assess the GPISF established by Company and Company retains the GPISF. Company pays Elavon the per transaction fees as set forth in this application to the Agreement for all GPISF Transactions. 6 “Elavon-Managed” Service Fee means that Elavon establishes the amount of the GPISF, and Elavon charges and retains the GPISF in lieu of Company’s obligation to pay Elavon the per transaction fees and Safe-T Services fees (if Safe- T is chosen above) for GPISF Transactions. 7 “Partner- Managed” Service Fee means that Sales Partner (a Sales Partner is a registered third party sales organization selling Elavon services) establishes the amount of the GPISF (subject to the requirements of the Agreement and applicable Payment Network Regulations) as set forth in this application to the Agreement. Elavon will retain the GPISF in lieu of Company’s obligation to pay Elavon the per transaction fees and Safe-T Services fees (if Safe-T is chosen above) for GPISF Transactions. USA-GOV-- 5 USA-GOV-USB-0821 SUBSTITUTE FORM W-9 GOVERNMENT NON-PROFIT CHARITABLE OR SOCIAL (INCLUDE DOCUMENTS THAT SUPPORT TAX EXEMPT STATUS) OTHER LEGAL BUSINESS NAME* : *NAME (OF BUSINESS)AS SHOWN ON YOUR BUSINESS INCOME TAX RETURNS. FOR SOLE PROPRIETORS, THIS SHOULD ALWAYS BE THE OWNER’S NAME. LEGAL BUSINESS ADDRESS (NO PO BOX): OR TIN (EMPLOYER ID #): CITY: STATE: ZIP CODE: TIN (SOCIAL SECURITY #): 4 COMPANY REPRESENTATIONS AND CERTIFICATIONS Company Representations and Certifications. By signing below, the applicant company (“Company”) and its representative(s) represent and warrant to Elavon, Inc. (“Elavon”), with offices at 7300 Chapman Highway, Knoxville, TN 37920, and U. S. Bank National Association (“Member”), with offices at U. S. Bancorp Center, 800 Nicollet, Minneapolis, MN 55402, (collectively, “we” or “us”) that (i) all information provided in this company application (“Company Application”) is true and complete and properly reflects the business and financial condition of Company; and (ii) the persons signing this Company Application and the Agreement. The signature by an authorized representative of Company on the Company Application, or the transmission of a Transaction Receipt or other evidence of a Transaction to us, shall be the Company’s acceptance of and agreement to the terms and conditions contained in the Agreement including, without limitation, this Company Application, the Terms of Service (“TOS”), the Addendum to the Terms of Service for Government/Institutional Companies attached hereto, and the Operating Guide incorporated herein by this reference and located at our website at https://www.mypaymentsinsider.com/api/file/c/Terms_of_Service_English and https://www.mypaymentsinsider.com/api/file/c/Operating_Guide_English, respectively. If you are accepting electronic payments through Transend Pay you also agree to the Terms and Conditions set out under the Resources tab at www.elavon.com/transendpay, and as subsequently amended in the Operating Guide in the Transend Pay Services Chapter. If Company does not have access to view the TOS or Operating Guide at our website please contact our customer service center. Notwithstanding any such non-receipt of the TOS or Operating Guide, Company agrees to comply with the Agreement, and all applicable laws, rules, and regulations including the rules and regulations of the Payment Networks, and understands that failure to comply will result in termination of processing services. Capitalized terms shall, unless otherwise defined in this Company Application, have the same meaning ascribed to them in the TOS and Operating Guide. Company must obtain an Authorization Code via electronic terminal or similar device before completing any transaction. Company understands that an AUTHORIZATION CODE IS NOT A GUARANTEE OF ACCEPTANCE OR PAYMENT OF A TRANSACTION. RECEIPT OF AN AUTHORIZATION CODE DOES NOT MEAN THAT COMPANY WILL NOT RECEIVE A CHARGEBACK FOR THAT TRANSACTION. Company and its representative(s) authorize us prior to our acceptance of this Company Application and from time to time thereafter, to investigate the business history and background of Company and to obtain credit reports or other background investigation reports on Company that we consider necessary to review the acceptance and continuation of this Company Application. Company also authorizes any person or credit reporting agency to compile information to answer those credit inquiries and to furnish that information to us. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. This means we will ask for certain information and identifying documents to allow us to identify you. This Company Application may be signed in one or more counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same Company Application. Delivery of executed counterparts of this Company Application may be accomplished by a facsimile transmission, and a signed facsimile or copy of this Company Application shall constitute a signed original. PCI Compliance and PCI Program Fee. All companies, regardless of Transaction volume, must comply with the requirements of the Payment Card Industry Data Security Standard (“PCI DSS”). Elavon’s monthly Standard PCI Program Fee for Level 4 companies (based on Transaction volume) is $ . Any Level 4 company that validates PCI DSS compliance on an annual basis, with initial validation to occur no later than ninety (90) days after account approval, is eligible for the Discounted PCI Program Fee of $. Merchants that have selected a SAFE-T solution: Your price for the SAFE-T solution selected above is $ , which includes the Discounted PCI Program Fee. You must validate PCI DSS compliance within ninety (90) days of account approval, and annually thereafter, to continue to receive the Discounted PCI Program Fee. By signature below, Company acknowledges that if Company has not validated PCI DSS compliance within ninety (90) days of account approval, or in subsequent years on or before the anniversary date of account approval, Company will no longer be eligible for this discount and will be required to pay the full, undiscounted monthly Standard PCI Program Fee of $ until Elavon is provided with validation of PCI DSS compliance. If Company utilizes a SAFE-T solution and Company fails to validate PCI DSS compliance, Company acknowledges that the price of Company’s SAFE-T solution will be adjusted to $ to reflect the loss of this discount. Company may be eligible for Data Breach Financial Assistance following account approval and PCI DSS compliance validation. See the PCI Compliance Program Overview in the Operating Guide for assistance details and conditions. American Express Acceptance Program (Acceptance Program). If Company has elected to accept American Express® Transactions (as indicated in the Card Acceptance section of this Company Application), in addition to all other terms of this Agreement, Company agrees to the Acceptance Program terms of the TOS. By signing below or by accepting a Transaction initiated with an American Express® Payment Device, Company expressly authorizes Elavon to submit American Express® Transactions to, and to receive settlement funds from, American Express on Company’s behalf. Company further authorizes Elavon to provide Company’s contact information to American Express, and Company agrees that American Express may use and share such contact information for its business purposes and as permitted by applicable Laws, including to communicate with Company regarding products, services, and resources available to Company’s business. American Express’s use of the email address and mobile phone number provided above is subject to the consent to such use as indicated in Section 1 of this Company Application. Consent to American Express’s use of contact information for such communications may be withdrawn at any time by contacting our customer service center. Even if consent is withdrawn, Company may still receive messages related to important information about Company’s account from American Express. Company or Elavon may terminate Company’s acceptance of American Express® Payment Devices at any time, with or without cause, without affecting Company’s rights and obligations pursuant to the remainder of this Agreement. Company acknowledges that, if at any time Company is no longer qualified to participate in the Acceptance Program, Company may be enrolled in the standard American Express® card acceptance program, which may have different terms and conditions than the Acceptance Program, and Company’s acceptance of American Express® Payment Devices pursuant to this Agreement will be terminated. Company acknowledges that American Express is an intended third-party beneficiary of this Agreement, solely with respect to the terms and conditions applicable to Company’s acceptance of American Express® Payment Devices, and that American Express has the right to enforce such terms and conditions directly against Company. A PIN/PINLess Debit Enablement Service Fee will be collected for any Interchange and Assessment savings generated through debit routing on your monthly debit transactions for Interchange Plus customers only. This monthly fee will be calculated from your actual debit transaction volume and will be a percentage of your overall debit cost savings. The PIN/PINLess Debit Enablement Service Fee collected and the Interchange and Assessment savings will be reflected on your monthly statement. SIGNATURE: X PRINTED NAME:T ITLE: DATE: SIGNATURE: X PRINTED NAME: T ITLE: DATE: SUBMITTED BY (INTERNAL USE ONLY) To the best of my knowledge, I certify that the information provided in this Company Application was provided by the Company and is true, complete and accurate. I further certify that the signatures were provided by the Company’s authorized representative. PRINTED NAME: REP ID #: DATE: REP PHONE #: REP EMAIL: 6 USA-GOV-USB-0821 ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL COMPANIES The following provisions hereby replace the like-numbered provisions of the Terms of Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies operating under the Agreement. Capitalized terms used and not otherwise defined in this Addendum shall have the meanings ascribed to them in the Agreement or the Operating Guide. 1)Section 4.1 Security Interests is deleted. 2)Section 5.2(a) is revised to add the following: “(iv) Company may terminate the Agreement on 60 days’ prior written notice to Elavon if sufficient legislative appropriation is not available.” 3)Section 5.2(b) is deleted and replaced with the following: “By Elavon. Elavon may terminate the Agreement immediately in writing if any of the following occur: (i) A material adverse change in Company’s financial condition; (ii) The commencement of a Bankruptcy Proceeding by or against Company; (iii) Any representation by Company is false or misleading in any material respect as of the date made, or becomes false or misleading in any material respect at any time during the Term; (iv) Any Payment Network or application of Payment Network Regulations requires Elavon to terminate the Agreement or cease processing Transactions for Company; (v) Assignment of the Agreement or change of control of Company without Elavon’s written consent; (vi) The levy, garnishment or attachment of the DDA, the Reserve Account, or any of Company’s property in Elavon’s possession; (vii) Any change, not approved by Elavon, that constitutes a material change in the types of goods or services Company sells or in the methods by which Company sells them, or any change that results in Company’s violation of Elavon’s underwriting policy; or (viii) If, after Elavon provides 30 days’ written notice, Company has either (1) Chargebacks or Retrieval Requests in excess of 1% of the gross dollar amount of Company’s Transactions or returns in excess of 2.5% of the gross dollar amount of Company’s Transactions, or (2) the acceptance of Card Not Present or Convenience Fee Transactions without proper disclosure to Elavon in the Agreement (including in the Company Application) or an amendment to the Agreement. 4)Section 10.1Audit is revised to read as follows: “Audit. If Elavon or Member reasonably suspects that they are subject to a financial or reputational risk due to Company’s actions or omissions, Company authorizes Elavon and its agents to perform an audit or inspection of Company’s operations and records to confirm Company’s compliance with the Agreement upon reasonable advance notice, during normal business hours, and at Elavon’s expense (unless Elavon reasonably determines based on such audit that Company is not in compliance with the Agreement, in which case Company will bear the cost). Company will obtain and submit a copy of an audit from a third party acceptable to Elavon of the financial, physical security, information security, and operational facets of Company’s business at its expense when requested by Elavon. Further, Company acknowledges and agrees that the Payment Networks have the right to audit Company’s business to confirm compliance with the Payment Network Regulations. Company will maintain complete and accurate records of its performance under the Agreement. Company will execute and deliver to Elavon all documents Elavon reasonably deems necessary to verify Company’s compliance with Section 8.1.” 5)Section 10.2(b) Financial Information is revised as follows: “Financial Information. At Elavon’s request, Company will provide Elavon audited financial statements prepared by an independent certified public accountant selected by Company, or if Company is audited by a governmental authority, then Company will provide financial statements from such governmental authority. Within 120 days after the end of each fiscal year (or in the case of a government entity, when available), Company will furnish Elavon, as requested, a financial statement of profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year, each audited as provided above. Company will also provide Elavon such interim financial statements and other information as Elavon may request from time to time.” 6)Section 13 Indemnification is deleted and replaced with the following four sections: “13(a). Company Responsibilities. As between Company and Elavon, Company will be responsible for, and at its own expense, defend itself against any suits, claims, losses, demands or damages arising out of (i) any sale or provision of goods or services resulting in a Transaction processed under the Agreement; (ii) Company’s breach of the Agreement; (iii) all use of any user ID and password other than by Elavon or Elavon’s third-party contractors; (iv) Company’s or its Service Providers’ gross negligence or willful misconduct; (v) Company’s or its Service Providers’ violation of Laws or Payment Network Regulations; or (vi) any personal injury or real or tangible personal property damage to the extent 7 USA-GOV-USB-0821 caused by Company or its Service Providers. Company will not make any claims against Elavon for any liabilities, claims losses, costs, expenses and demands of any kind or nature, arising out of or in connection with any of the foregoing suits, claims, losses, demands or damages. 13(b). Elavon Responsibilities. In addition to Elavon’s obligations in Section 13(c), Elavon will be responsible for and will at its own expense defend itself against any suits, claims, losses, demands or damages arising out of (i) Elavon’s breach of the Agreement; (ii) Elavon’s or its third party contractors’ gross negligence or willful misconduct; (iii) Elavon’s or its third party contractors’ violation of applicable Laws or Payment Network Regulations; (iv) Elavon’s alleged infringement or other violation of a U.S. or Canada patent, copyright or trademark of a third party by the Services in the form delivered or Company’s use thereof; or (v) any personal injury or real or tangible personal property damage to the extent caused by Elavon or its third party contractors. 13(c). Infringement Claims. (i) Elavon will defend Company and its employees, officers, and agents in connection with claims, actions, demands or proceedings (made or threatened) brought by a third party, and will pay the final award of damages assessed against Company, its employees, officers or agents in a final judgment by a court of competent jurisdiction, including awarded costs, or any amount in settlement or compromise authorized by Elavon in writing, arising out of Elavon’s alleged infringement or other violation of a U.S. or Canada patent, copyright or trademark of a third party by the Services (but not Equipment) in the form delivered or Company’s use thereof (an “Infringement Claim”). (ii) If any part of the Services or the use of the Services becomes, or in Elavon’s opinion is likely to become, the subject of an Infringement Claim, and as a result of such Infringement Claim Company’s use of the Services may be enjoined or interfered with, then Elavon will, at its option and expense, either, and in addition to defending Company and paying the final amount of damages as provided for in this section, (1) obtain a license for Company to continue using the alleged infringing component(s) of the Services; (2) modify the alleged infringing component(s) of the Services to avoid the infringement in a manner that still permits the Services to perform in all material respects in accordance with the Agreement; or (3) replace the alleged infringing component(s) of the Services with compatible, functionally equivalent, and non-infringing component(s). Elavon will use commercially reasonable efforts to accomplish the remedies identified in this section in a manner that minimizes the disruption to Company’s business operations. If Elavon is not able to accomplish the above remedies within a commercially reasonable time frame and on commercially reasonable terms, Elavon may terminate the Agreement upon written notice to Company. Upon such termination, Elavon will promptly refund any fees paid for Services not performed as of the date of termination. (iii) Elavon will have no liability for any Infringement Claim to the extent caused by (1) access to or use of the Services other than as specified under the Agreement and the related Documentation, (2) combination or use of the Services with non-Elavon products or services (whether or not provided to Company by Elavon), (3) any hardware, devices, software, services or other resources not provided by Elavon, (4) failure or refusal by Company to install, implement or use any Update or correction provided by Elavon, (5) modification or alteration of the Services by anyone other than Elavon without Elavon’s prior written consent, (6) Company’s goods or services, or (7) the negligence, gross negligence or willful misconduct of, or breach of the Agreement by, Company. (iv) THIS SECTION 13(c) SETS FORTH THE EXCLUSIVE REMEDY OF COMPANY AND THE SOLE AND COMPLETE LIABILITY OF ELAVON WITH RESPECT TO ANY INFRINGEMENT CLAIMS. 13(d). Procedure. (i) If an Infringement Claim is subject to Elavon’s obligations in Section 13(c) of the Agreement, Company will: (1) Provide Elavon prompt notice of the Infringement Claim (provided that any delay in notification will not relieve Elavon of its obligations under this Section 13(d) except to the extent that the delay materially impairs its ability to fully defend the Infringement Claim); (2) Subject to Section 13(d)(ii), give Elavon the right to exercise exclusive control over the preparation and defense of the Infringement Claim, including appeals, negotiations and any settlement or compromise thereof, provided that Elavon will notify Company in writing of its election regarding the assumption of control of the preparation and defense of such Infringement Claim within 15 days following receipt of Company’s written notice of such Infringement Claim, but, in any event, no later than 10 days before the date on which any written response to a complaint, summons, or other legal filing is due; and (3) Provide such assistance in connection with the defense and settlement of the Infringement Claim as Elavon may reasonably request, at Elavon’s expense. Elavon will not enter into any settlement that imposes any liability or obligation on Company, or contains any admission or acknowledgement of wrongdoing (whether in tort or otherwise), without Company’s prior written consent. (ii) Company may join in the defense, with its own counsel, at its own expense.” 7) Section 16 Personal Guaranty is deleted. 8) Section 18.2 Jurisdiction and Venue; Governing Law is deleted. 8 USA-GOV-USB-0821 9) Section 18.3 Exclusivity is deleted. 10) Section 18.5 Assignability is revised as follows: “Assignability. Company will not assign the Agreement, directly, by operation of law, or by change of control of Company, without Elavon’s prior written consent. If Company nevertheless assigns the Agreement without Elavon’s consent, the Agreement will be binding on both the assignee and Company. Elavon will not transfer or assign the Agreement without the prior written consent of Company, provided that such consent will not be required for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or delegation to any Person into or with which Elavon will merge or consolidate, or who may acquire substantially all of Elavon’s stock or assets.” 11) Section 18.6Arbitration is deleted. 12) Section 18.9 Attorney’s Fees and Expenses is deleted. 13) Section 18.12 Amendments is revised as follows: “Amendments. Except as otherwise provided in the Agreement, amendments to the Agreement will be in writing and signed by the parties. Notwithstanding the foregoing, Elavon and Member may amend or modify the Agreement, to the extent such changes are required by or attributable to changes in the Payment Network Regulations or other Laws, upon written notice to Company. Elavon or Member will inform Company of such a change in a periodic statement or other written notice, and such change will become effective at least 30 days after the issuance of the notice. Notwithstanding the previous sentence, changes to fees authorized by the Agreement will be effective upon notice to Company, unless a later effective date is provided. Further, Elavon is entitled to pass through to Company any fee increases imposed upon Elavon by Visa, MasterCard, Discover Network, any other Payment Network, and any other third party including telecommunications vendors.” 14) Schedule A, Section 1.8 Title; Quiet Enjoyment is replaced as follows: “Title; Quiet Enjoyment. Lessor will at all times retain title to the Leased Equipment. All documents of title and evidence of delivery will be delivered to Lessor. Lessee hereby authorizes Lessor, at Lessee’s expense, to cause the lease or any statement or other instrument in respect to the lease showing the interest of Lessor in the Leased Equipment including Uniform Commercial Code Financing Statements, to be filed or recorded and/or refiled and rerecorded, and grants Lessor the right to execute Lessee’s name thereto. Lessee agrees to execute and deliver any statement or instrument requested by Lessor for such purpose, and agrees to pay or reimburse Lessor for any filing, recording or stamp fees or taxes arising from the filing or recording of any such instrument or statement. Lessee will at its expense, protect and defend Lessor’s title against all persons claiming against or through Lessee, at all times keep the Leased Equipment free from legal process or encumbrance whatsoever and, will give Lessor immediate notice thereof and will be responsible for any loss caused thereby. Lessee agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver or other similar documents as Lessor may reasonably request. Provided Lessee is not in default hereunder, Lessee will quietly use and enjoy the Leased Equipment subject to the terms hereof.” 15) Schedule A, Section 1.10 Net Lease; Taxes is replaced as follows: “Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor, and Lessee agrees to pay any applicable sales, use, excise, personal equipment, stamp, documentary and ad valorem taxes, license and registration fees, assessment, fines, penalties and similar charges imposed on the ownership, possession or use of the Leased Equipment during the term of the lease. Lessee will pay all applicable taxes (except Lessor’s federal or state net income taxes) which may be imposed on Lessor or Lessee with respect to the lease payments hereunder or the ownership of the Leased Equipment. Lessee will pay as additional rent, any applicable taxes documented as paid or advanced by Lessor on behalf of Lessee. Lessee agrees that the reimbursement of equipment tax calculation is based on an average tax rate. Unless otherwise agreed to in writing, Lessee will file personal equipment tax returns with respect to the Leased Equipment.” 16) Schedule A, Section 1.11 Indemnity is replaced as follows: “Responsibility of Lessor. As between Lessor and Lessee, Lessee will be responsible for, and at its own expense, defend itself against any and all liability, damage or loss, arising out of the ownership, selection, possession, leasing, operation, control, use, condition, maintenance, delivery and return of the Leased Equipment. The obligations herein provided will continue in full force and effect notwithstanding the termination of the lease.” 17) Schedule A, Section 1.16 Remedies is replaced as follows: “Remedies. If an Event of Default will occur, Lessor may, at its option, at any time (i) declare immediately due and payable and recover from Lessee, as liquidated damages for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid rental payments and late charges, taxes, and other fees, plus the Loss Amount; provided, however, that if an Event of Default will occur as described in Section 1.15(iv) through (vi) above, Lessor without any notice or action will be deemed to have made such a declaration; (ii) automatically charge the DDA for all money amounts owed; (iii) to the extent permitted by applicable Law, without demand or legal process, enter into the premises where the Leased Equipment may be found and take possession of and remove the Leased Equipment, without liability for such retaking; (iv) Lessor may hold, sell or otherwise dispose of any such Leased Equipment at a private or public sale; or (v) exercise any other remedies available under applicable Law. If Lessor takes possession of the Leased Equipment, Lessor will give Lessee credit for any sums received by Lessor from the sale or rental of the Leased Equipment after deduction of the 9 USA-GOV-USB-0821 expenses of sale or rental and Lessee will remain liable to Lessor for any deficiency. Notwithstanding the foregoing, to the extent any software included with the Leased Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or the licensor of such software will have no duty to remarket or otherwise mitigate any damages relating to such software. Lessee will also be responsible for all expenses incurred by Lessor in connection with the enforcement of any of Lessor’s remedies including all expenses of repossessing, storing, shipping, repairing and selling the Leased Equipment. Lessor and Lessee acknowledge the difficulty in establishing a value for the unexpired lease term and, owing to such difficulty, agree that the provisions of this Section represent an agreed measure of damages and are not to be deemed a forfeiture or penalty. All remedies of Lessor hereunder are cumulative, are in addition to any other remedies provided for by Law, and may, to the extent permitted by Law, be exercised concurrently or separately. The exercise of any one remedy will not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of the Lessor to exercise and no delay in exercising any right to remedy will operate as a waiver thereof or modify the terms of the lease.” 18) Schedule A, Section 1.19 Miscellaneous is replaced as follows: “Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition to the payment, a late charge of 15% of the amount past due (but at least $7.50) for each late payment. Each month the past due payment remains unpaid, an additional late fee in the amount defined will be assessed. Payments are applied to late fees and service charges first and then to the lease obligation. Amounts will be payable in addition to all amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein provided. If Lessee requests any services not provided for herein, Lessee agrees to pay an applicable fee for delivery of such services. Lessee will inform Lessor of any change in Lessee’s name, address, billing address, telephone numbers, location of the Leased Equipment, or DDA. If Lessee fails to comply with any provision of the lease, Lessor will have the right, but not be obligated, to affect such compliance on behalf of Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies expended by, and all expenses of Lessor in effecting such compliance, will be deemed to be additional rental, and will be paid by Lessee at the time of the next monthly payment of rent. All notices under the lease will be sufficient if given personally or mailed postage prepaid to the party intended at the respective address set forth herein, or at such other address as said party may provide in writing from time to time. The lease inures to the benefit of and is binding upon the personal representatives, successors and assigns of the parties hereto. Time is of the essence of the lease. Lessor and Lessee intend the lease to be a valid and subsisting legal instrument, and agree that no provision of the lease that may be deemed unenforceable will in any way invalidate any other provision or provisions of the lease, all of which will remain in full force and effect. The lease will be binding when accepted in writing by Lessor and will be governed by the laws of the state where the Leased Equipment is located.” 19) Schedule A, Section 1.20 Important Information about Credit Reporting is deleted. 20) Schedule A, Section 2.6 Title; Quiet Enjoyment is replaced as follows: “Title; Quiet Enjoyment. Lessor will at all times retain title to the Leased Equipment. Lessor may at Lessee’s expense, cause the lease or any document, statement or other instrument in respect to the lease showing Lessor’s interest in the Leased Equipment, including without limitation Personal Property Security Act or Civil Code of Quebec financing statements, to be filed, registered or recorded, or refiled, reregistered and rerecorded, as applicable. Lessee waives the right, where permitted by law, to receive a copy of any financing statement, financing change statement or verification statement. Lessee agrees to execute and deliver any document, statement or instrument requested by Lessor for such purpose, and agrees to reimburse Lessor for any expense arising therefrom. Lessee will at Lessee’s expense protect and defend Lessor’s title against all persons claiming against or through Lessee, at all times keep the Leased Equipment free from legal process or encumbrance whatsoever, and will give Lessor immediate notice thereof and will be responsible for any loss caused thereby. Lessee agrees to procure for and deliver to Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver or other similar documents as Lessor may request. Provided Lessee is not in default hereunder, Lessee may quietly use and enjoy the Leased Equipment subject to the terms hereof.” 21) Schedule A, Section 2.9 Indemnity is replaced as follows: “Responsibility of Lessor. As between Lessor and Lessee, Lessee will be responsible for, and at its own expense, defend itself against any and all liability, damage or loss, arising out of the ownership, selection, possession, leasing, operation, control, use, condition, maintenance, delivery and return of the Leased Equipment. The obligations herein provided will continue in full force and effect notwithstanding the termination of the lease.” 22) Schedule B, Section 1.5 Personal Guaranty is deleted. 23) Schedule B, Section 1.6 Jurisdiction and Venue; Governing Law is deleted. 24) Schedule B, Section 1.7 Arbitration is deleted. 25) Schedule C, Section 16 is hereby added: “16. Effective March 1, 2020, (i) either Elavon or Company may terminate the ECS services portion of the Agreement at any time upon thirty days’ prior written notice to the other party, and (ii) Elavon may, at its option, transition Company to a new program offered by Elavon that provides services similar to the ECS.” SCHEDULE H – 2006 County Terms of Service (TOS) (Oakland County, MI) G2G Cloud Solutions Anticipated Remediation Process 03.07.22 FINAL 1 Oakland County, MI G2G Cloud Solutions Anticipated Remediation Process The Payment Networks require that Elavon obtain written agreements with each merchant for whom Elavon is providing transaction processing services (each Merchant Identification Number or MID). While it appears that when this relationship was established such agreements may have been obtained from the agencies as they were boarded, that is no longer the case, which needs to be addressed in order for the parties to be in compliance with the Payment Network Regulations. The steps to address this issue for new and existing agencies are outlined below. To summarize, the County has established its G2G Cloud Solutions website to assist other agencies in obtaining different services, including credit and debit card transaction processing services. The County provides transaction processing services to the agencies at “no cost” and instead charges and manages a service fee which is paid for by the cardholder. The service fee is disclosed at the time of the transaction as a G2Gcharge.com, and is billed as a separate transaction to the cardholder under the G2Gcharge.com name. The Payment Network Rules state, however, that item on the cardholder statement needs to say “G2Gcharge.com Service Fee” which change can be made by Elavon. The cardholder will then see two transactions – one for the Agency Name (which funds are deposited to the Agency’s designated bank account or DDA) and the G2Gcharge.com Service Fee transaction which is deposited to the G2Gcharge.com DDA. STEPS FOR ADDING NEW AGENCIES 1.Oakland County and the Agency will complete the New Application- Government/Institutional (version USA-GOV-ELVMSP-0221, as updated) for each MID. a.Pg. 1 - All information on this page is to be completed for the Agency. b.Pg. 2 – Complete the Card Acceptance and Pricing Category boxes at the top. c.Pg. 2 – Pricing – to ensure that pricing is set correctly, the Fixed Pricing Program of 00229 must be entered as well as 0% and $0 per item as shown below, along with the PCI Compliance Fee, Authorization and other fees set to $0. d.Pg. 3 – Under Point of Sale, where it says “VAR Service Provider (Hosted)” add “Oakland County, MI.” (Pricing Information and the rest of the page remains blank) SCHEDULE I – REMEDIATION PROCESS (Oakland County, MI) G2G Cloud Solutions Anticipated Remediation Process 03.07.22 FINAL 2 e. Pg. 4 –Check “Partner-Managed Service Fee” in the right column  Complete the applicable Card Acceptance Boxes (Internet and IVR, if applicable)  Complete the applicable MasterCard, Visa, Amex and Discover Program Boxes (check all)  Complete the Transaction Type (Government Fees)  Complete the Credit and Signature Debit boxes and Payment Types (do not check ACH) (Oakland County, MI) G2G Cloud Solutions Anticipated Remediation Process 03.07.22 FINAL 3  Check Company Proprietary Solution or Value-Added Servicer Box  For Pricing, add “see sheet” in the first two lines  Be sure to include the G2G Cloud Solutions Oakland County Service Fee Pricing Sheet (sample attached) f. Pg. 5 – Complete the Substitute Form W-9 and the Agency should sign and date in Section 4 g. Send the completed and signed application and Service Fee sheet to Daniel.Huff@elavon.com and strategicpublicsectorrelationships@elavon.com. h. Elavon will complete the Sales Worksheet (and add Association Code 00402 in the Notes) 2. Upon approval of the Application, Elavon will establish a MID for the Agency (and funding for the transactions will go to the DDA identified by the Agency on page 1 of the application). Elavon will direct the Service Fee to the new G2Gcharge.com MID established for the partner relationship (and all service fees will go to Oakland County). Elavon will also provide a tear sheet for all new Agency MIDs boarded. 3. Elavon will debit Oakland County each month for the fees due to Elavon under agreements. STEPS FOR REPAPERING CURRENT AGENCIES WITHOUT A SEPARATE AGREEMENT 1. Elavon will prepare a Government Application for each MID that does not have a signed Elavon agreement (similar to the steps above) with the information available to Elavon (for clarity, the County and Agency will need to complete the information in Section 3 on page 1). 2. The application will be forwarded to Oakland County for submission to and signature by the agency. Oakland County will forward the application with a Service Fee sheet to the agency for execution. 3. The signed application and Service Fee sheet should be sent to Daniel.Huff@elavon.com and strategicpublicsectorrelationships@elavon.com. 4. The existing agency MID will remain the same, and the G2Gcharge.com MID used will be the new partner relationship MID. Oakland County will need to add the partner relationship service fee MID to the Payflow Pro interface. ANTICIPATED COMPLETION DATE: 1. County agrees to submit the applications prepared by Elavon to the applicable agencies within 30 days of receipt from Elavon. County will follow-up with the agencies periodically to ensure return of the documents. 2. County will use its best efforts to complete the steps necessary to effectuate the change to the G2Gcharge.com MID by September, 2022. (Oakland County, MI) G2G Cloud Solutions Anticipated Remediation Process 03.07.22 FINAL 4 SAMPLE G2G Cloud Solutions by Oakland County, MI Service Fee Pricing Enhanced Access Fees G2G Cloud Solutions charges a reasonable fee for providing enhanced access to a public record. A "reasonable fee" is defined as a charge calculated to enable recovery over time, only those operating expenses directly related to the public body's provision of enhanced access. A *Master Fee Structure for all G2G Cloud Solutions enhanced access products and services is as follows: *The charge for Delinquent Tax Statement is a statutory fee of $1.25 plus a $0.75 Enhanced Access Fee. Price Range Fee $0.00 to $49.99 $2.50 flat rate per order $50.00 to $99.99 $4.00 flat rate per order $100.00 to $199.99 $5.50 flat rate per order $200.00 to $299.99 $8.25 flat rate per order $300.00 to $399.99 $11.00 flat rate per order $400.00 to $499.99 $13.75 flat rate per order $500.00 to $599.99 $16.50 flat rate per order $600.00 to $699.99 $19.25 flat rate per order $700.00 to $799.99 $22.00 flat rate per order $800.00 to $899.99 $24.75 flat rate per order $900.00 to $999.99 $27.50 flat rate per order $1,000.00 and over 2.75 percent of order Pay Via Electronic Check $2.50 flat rate per order