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Section VII – Notice and Conditions

A. Breach Hotline

In the event the Insured Organization experiences an Incident, we recommend that the Insured Organization contact the Breach Hotline identified on the Declarations for immediate assistance. Contacting the Breach Hotline does not constitute notice under the Policy. The Insured Organization must still comply with the notice requirements set forth in part B. Notice of a Claim or Incident in SECTION VII – NOTICE AND CONDITIONS or any other requirements for notice set forth in this Policy.

B. Notice of a Claim or Incident

The Insured must give written notice to Us of any Claims as soon as practicable after such Claims is made, but no later than expiration of the Policy Period or the Extended Reporting Periods (if applicable).

The Insured must give written notice to Us of any Incidents as soon as practicable after such Incident is discovered, but no later than expiration of the Policy Period or the Automatic Extended Reporting Period (if applicable). Notice of a reasonably suspected Incident shall constitute notice of a circumstance that could reasonably be the basis for a Claims.

Noticeof a Claims or Incident shall be provided to the contacts listed for notice in the Declarations and must include sufficient details regarding: (1) the nature of the Incident or Claims; (2) how a member of the Executive Group first became aware of the Incident or Claims; and (3) the potential injury or damage which may result or has resulted from the Incident or Claims.

Inquiries made to the Breach Hotline described in part A. of SECTION VII – NOTICE AND CONDITIONS do not constitute notice of an Incident or Claims.

Any notice provided to the third-party claim administrator, if any, as shown in the Declarations shall be deemed notice given to Us.

C. Notice of Circumstance

If during the Policy Period an Insured first becomes aware of any circumstance which may reasonably give rise to a future Claims under the Policy, an Insured may give written notice of such circumstance to Us through the contacts listed for notice in the Declarations as soon as practicable during the Policy Period. Such notice must include full particulars of the acts, errors, omissions, or facts of the circumstance. Any subsequent Claims made against the Insured arising out of any circumstance reported to Us in conformance with this paragraph will be considered to have been made at the time written notice in conformance with this paragraph was given to Us.

D. Confidential Incidents

In the event the Insured is prevented from reporting an Incident or Claims, or because of a court order or written instruction, or request from a law enforcement, regulatory, or other government agency prohibiting the Insured from disclosing information pertaining to an Incident, notice of such Incident or Claims will be considered timely under the Policy if:

  1. as soon as practicable after receipt of such court order, instruction, or request, an officer or employee of the Insured Organization requests permission from such law enforcement, regulatory, or other government agency to give notice of such Incident or Claims under this Policy and to share such confidential information with Us;
  2. the Insured only withholds from the Insurer that portion of the information, and any required notice, that it has been instructed by such law enforcement, regulatory, or other government agency not to share with Us;
  3. the Insured provides full notice of such Incident or Claims to Us as soon as practicable after the termination of such prohibition, but in no event, no later than 60 days after the termination of such prohibition; and
  4. the Insured provides Us with a copy of the court order, instruction, or request from the law enforcement, regulatory, or other government agency, and any subsequent communications relating thereto, prohibiting the Insured from disclosing the Incident or Claims.

E. Conditions for Cyber Extortion

Before We make any payment to indemnify the Insured Organization for money, funds, digital currencies (including Cryptocurrencies ), or other assets paid by the Insured Organization or on the Insured Organization's behalf to terminate or end an Extortion Demand as set forth in part B. Cyber Extortion of SECTION I – 1st PARTY INSURING AGREEMENTS, as a condition precedent to coverage, the Insured Organization must:

  1. obtain Our prior written agreement to pay any such money, funds, digital currencies, or other assets;
  2. notify the relevant law enforcement of the Extortion Demand and make every reasonable effort to cooperate with law enforcement in the investigation of the Extortion Demand; and
  3. obtain a sanctions check report from either a professional on the Vendor Panel or another vendor for which We have provided Our prior written consent attesting that the money, funds, digital currencies, or other assets are not being paid to a known terrorist organization or enterprise, or to any person, organization or entity appearing on any government sanctions list, including those of the United States, United Kingdom, European Union, and the United Nations Security Council.

F. Conditions for Business Interruption, Internal Data Restoration, Reputation Loss, and System Restoration

As set forth herein, any amounts submitted as potential Bricking Loss, Business Income Loss, Extra Expense, Reputation Loss, Remediation Costs, or for the Insured Organization's internal fees and costs as potential Data Restoration Loss, are subject to the submission of a timely and completed Proof of Loss. Any Proof of Loss must be provided to Us as soon as practicable after the Insured Organization first discovers the Cyber Security Incident, System Disruption, or Adverse Media Event, but no later than 6 months after the end of the Policy Period.

G. Settlement of Claims

The Insured may settle any Claims where the Claim Expenses and Damages do not exceed the Retention, provided that the entire Claims is resolved and the Insured obtains a full release on behalf of all Insureds from all claimants.

We shall not settle any Claims without the written consent of the Insured. If the Insured refuses to consent to any settlement recommended by Us and acceptable to the claimant, We shall have the right to withdraw from the further defense of such Claims and Our liability for such Claims will not exceed:

  1. the amount for which the Claims could have been settled, less the remaining Retention, plus the Claim Expenses incurred up to the time We made Our recommendation to the Insured; and
  2. ninety percent (90%) of any Claim Expenses incurred after the date such settlement or compromise was recommended to the Insured plus ten percent (10%) of any Damages above theamount for which the Claims could have been settled.

H. When a Claim is Made or Incident is Discovered

A Claims will be deemed to be made on the earliest date on which a member of the Executive Group received notice of a demand, request, investigation, service of process, complaint, or other pleading or proceeding in connection with such Claims.

An Incident will be deemed discovered when such Incident first becomes known to a member of the Executive Group.

J. Assistance and Cooperation

As a condition precedent tothe Insured's rights under this Policy, the Insured must:

  1. fully cooperate with Us in all investigations, including investigations regarding coverage under this Policy;
  2. fully cooperate with Us in the investigation, defense, and settlement of any Incident or Claims, including attending hearings, depositions and trials, preserving and obtaining evidence, and giving written statements;
  3. immediately send us copies of any demands, instructions, notices, summonses or legal papers received in connection with any Incident or Claims;
  4. provide us with written authorization to obtain records and other information related to the Incident or Claims and allow us to conduct and control the defense or investigation;
  5. execute or cause to be executed all papers and rendering all assistance requested by Us; and
  6. promptly tender any Incident or Claims to any other insurer which also has available insurance for such Incident or Claims.

Expenses incurred by the Insured in assisting and cooperating with Us in our investigation shall not constitute Loss under the Policy.

The Insured will execute or cause to be executed all papers and render all assistance as is requested by Us. The Insured agrees not to take any action which in any way increases Our exposure under this Policy. Under no circumstances shall an Insured admit liability, enter into any settlement agreement, stipulate to any judgment, agree to any arbitration or other alternative dispute resolution proceeding, make any payment, assume any obligations, or incur any expense, without the prior written consent of Us. Except as otherwise provided in the definition Extra Expense and SECTION VII – NOTICE AND CONDITIONS, part E. Settlement of Claims, any Loss incurred or agreed to prior to Us giving our written consent shall not be covered under this Policy.

K. Reimbursement to Us

If We, in the exercise of our discretion and without any obligation to do so, pay any amount within the amount of the Retention, the Named Insured shall be liable to Us (or upon the Named Insured's failure to pay, any and all Insureds jointly and severally) for any and all such amounts paid by Us.

L. Right of Subrogation

In the event of any payment under this Policy, we shall be subrogated to any Insured's rights of recovery thereof against any person or entity. The Named Insured must execute and deliver instruments and papers and do whatever else is reasonably necessary to secure such rights and must do nothing to prejudice such rights.

Any amount recovered upon the exercise of Our rights of subrogation shall be applied as follows: first, to the repayment of expenses incurred in connection with the subrogation; second, to Loss paid by Us; and last, to the repayment of the Retention. Any additional amounts recovered will be paid to the Named Insured.

However, we shall not subrogate if an Insured agreed in writing to waive such Insured's right of recovery or subrogation against any person or entity prior to the act, omission, Incident, or event giving rise to the Claims or Loss connected with such subrogation.

M. Premiums

The Named Insured is responsible for the payment of all premiums. Premiums are due and payable when billed by Us. If full payment is not received within a thirty (30) day period from when due and We have not elected our right to cancel this Policy, interest will accrue on any premium balance from the original due date. The interest rate will be one and a half percent (1.5%) per month or any portion thereof and will continue accruing until the unpaid premium and accrued interest are fully received by Us. If the interest exceeds any applicable state law, then the interest rate shall be the highest rate permitted by law.

The Named Insured and We acknowledge that this Policy is a contract and that any funds due to the Named Insured specifically under this Policy may be offset and applied to funds due from the Named Insured to Us or Our affiliates under this Policy or any other insurance policies, regardless of whether such amounts are related to premiums or not.

N. Other Insurance

The insurance under this Policy is excess of any valid and collectible insurance available to any Insured unless such other insurance is written only as specific excess insurance over this Policy. With respect to a Claims, if no other insurer defends the Insured, We may, at Our discretion, undertake such a defense and will thereby be entitled to all rights of the Insured against those other insurers.

O. Waiver or Changes of Policy Terms

Notice to any agent or knowledge possessed by any agent or other person acting on behalf of Us shall not waive or change any part of this Policy or prevent Us from asserting any right under the terms of this Policy, nor shall the terms of this Policy be waived or changed except by written endorsement issued by Us to form a part of this Policy.

P. Change of Control

If, during the Policy Period, any of the following transactions occur:

  1. the Named Insured is dissolved, sold, acquired by, merged into, or consolidated with another entity such that the Named Insured is not the surviving entity;
  2. a person, entity, or affiliated group of persons or entities obtains (i) ownership or possession of fifty percent (50%) or more of the issued and outstanding capital stock, equity, member units, or any other applicable form of ownership of the Named Insured, or (ii) the right to elect or appoint more than fifty percent (50%) of the Named Insured directors, officers or trustees;
  3. a person, entity or affiliated group of persons or entities acquires fifty percent (50%) or more of the assets of the Named Insured; or
  4. the Named Insured ceases to do business for any reason;

then coverage under this Policy shall continue in full force and effect for the Named Insured until the end of the Policy Period, but only as respects to acts, errors, omissions, events, or Incidents which occurred prior to the effective date of the transaction.

Q. Assignment of Interest

No assignment of the interests of any Insured under this Policy shall be valid without our prior written consent except in the case of death, in which case any rights and duties will be transferred to the Insured's legal representative but only while acting within the scope of duties as legal representative. Until a legal representative is appointed, anyone having proper temporary custody of the Insured's property will have such rights and duties but only with respect to that property.

R. Cancellation

The following cancellation and non-renewal provisions apply to this Policy :

  1. the Named Insured may cancel this Policy by mailing or delivering to Us at the location disclosed in the Declarations advance written notice of cancellation;
  2. We may cancel this Policy by mailing to the Named Insured written notice of cancellation at least ten (10) days prior to the effective date of cancellation if We cancel for nonpayment of premium, or thirty (30) days prior to the effective date of cancellation if We cancel for any other reason;
  3. We will mail, email, or deliver our notice to Named Insured's last mailing address known to Us;
  4. if We cancel this Policy, the earned premium shall be calculated on a pro rata basis. If the Named Insured cancels this Policy, We will retain the customary short rate proportion of the premium. Premium adjustment may be either at the time cancellation is affected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation;
  5. the premium will be deemed fully earned if any Incident, Claims, or circumstance that could reasonably be the basis for a Claims, is reported to Us on or before the date of cancellation; and
  6. if this Policy, including any endorsements thereto, has been canceled for nonpayment of premium, it is expressly understood and agreed that We may, at our sole discretion, effect a flat cancellation effective as of the Policy's inception date. In such case, the Policy and any such endorsements will be void ab initio (unless prohibited by state law or regulation) and We will have assumed no liability hereunder.

S. Non-Renewal

If We decide not to renew this Policy, We will mail or deliver to the Named Insured a written notice of the non-renewal not less than thirty (30) days prior to the expiration date.The offering of terms and conditions different from the expiring terms and conditions, including limits of liability, retention or premium, will not constitute a refusal to renew or a cancellation of the Policy.

T. Action Against Us

No action shall lie against Us unless, as a condition precedent thereto, all terms of this Policy have been wholly complied with, nor until the amount of Our obligation to pay shall have been fully determined by either a final and non-appealable judgment against the Insured or by written agreement by and among the Insured, the claimant, and Us. Nothing contained in this Policy shall give any person or entity the right to join Us as a co-defendant in any action against any Insured to determine the Insured's liability, nor will the Insured or the Insured's representative implead us in any action.

U. Choice of Law

In the event of a dispute between the Named Insured and Us regarding this Policy, the dispute will be governed by and construed in accordance with the laws of the State of New York.

V. Alternative Dispute Resolution

Any dispute arising out of or relating to this Policy, including but not limited to its validity, interpretation, application, and any alleged breach, will first be submitted to mediation administered by Judicial Arbitration & Mediation Services ("JAMS"), or another provider to which the parties agree. The parties will cooperate with one another and the mediation provider in selecting a mediator and in scheduling mediation proceedings. The parties will attempt in good faith to settle the dispute. Each party will bear its own fees and costs in connection with any such mediation, but the costs incurred through the mediation provider, including the fees and expenses of the mediator, will be shared equally by the parties.

If mediation does not result in a settlement, either party may: (1) commence a judicial proceeding; or (2) with the consent of the other party commence an arbitration proceeding in accordance with the commercial arbitration rules of JAMS in effect at the time of dispute. The decision of the arbitrator or arbitrators will be final and binding and any award may be confirmed and enforced in any court of competent jurisdiction.

W. Statements, Warranties and Representations

By accepting this Policy, the Named Insured agrees that:

  1. the application(s) for insurance the Named Insured completed will be considered a part of this Policy including all statements, warranties, and representations made therein, and any statements, warranties, and representations made in connection with any attachments or supplements submitted in connection with the application(s);
  2. the statements, warranties, and representations are material, accurate, and complete;
  3. We have issued this Policy in reliance upon the Named Insured's statements, warranties, and representations; and
  4. except as otherwise provided by law, this Policy is void in any case of fraud or if any Insured (or any agent or person acting on behalf of or for the benefit of any Insured ) conceals or misrepresents any material fact or circumstance relating to this insurance.

X. Bankruptcy or Insolvency

The Named Insured's bankruptcy or insolvency shall not relieve Us of any of Our obligations under this Policy.

Y. Headings

Headings are included for reference and convenience only and shall not affect the construction or interpretation of any of the Policy provisions to which they relate and are not part of the Policy.

Z. Singular Form of a Word

Whenever the singular form of a word is used herein, the same will include the plural when required by context.

AA. Severability

Wherever possible, each provision of this Policy shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Policy shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of any prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Policy.

BB. Named Insured as Agent

The Named Insured will be considered the agent of all Insureds and will act on behalf of all Insureds with respect to the giving of or receipt of all notices pertaining to this Policy, and the acceptance of any endorsements to this Policy. The Named Insured is responsible for the payment of all premiums and Retentionsand for receiving any return premiums.

CC. Valuation and Currency

All monetary amounts under this Policy are expressed and payable in the currency of the United States. If any amounts covered by this Policy are stated or paid in a currency (including Cryptocurrency ) other than United States of America dollars, then the payment under this Policy will be made in United States Dollars at the conversion rate published in the Wall Street Journal at the time of the payment.