Electronic Products and Services Errors or Omissions, and Product Liability Insurance ( )

Transcription

1 - 1 - SCHEDULE Policy Number: Named Insured: Address: Scope of Business: Estimated Turn over : Electronic Products and Services Errors or Omissions, and Product Liability Insurance ( ) Insurance Schedule/ Coverage: This Insurance applies only to those coverages for which a Limit of Liability is shown. Each Schedule contains a description of the insurance and the Company s Limit of Liability for each item insured. At the top of each Schedule is an Effective date. If a Schedule has been revised, retain the copy bearing the latest effective date, as it will restate all of the limits currently insured. Conditions concerning premium changes and adjustment for premiums on a declaration basis, if applicable, are explained under the paragraph headed Declaration Conditions. Self Insured Retention amounts and Self Insured Retention conditions, if any, are indicated in the Schedule. THIS IS A CLAIMS MADE INSURANCE SCHEDULE. IT APPLIES ONLY TO CLAIMS FIRST MADE AGAINST THE INSURED DURING PERIOD OF INSURANCE AND NOTIFIED TO THE COMPANY DURING THE PERIOD OF INSURANCE.

2 - 2 - Limit of Liability: $ Each Claim less excess of the Self-Insured Retention stated below. Subject to the Policy provision "Limit of Liability and Self Insured Retention". $ Annual aggregate for all Claims Self Insured Retention: $ each claim including expenses. Territorial Limits: Jurisdiction: INSURING AGREEMENT The named Insured is insured by Migdal Insurance Company Ltd.( herein called the Company), in consideration of payment of the required premium, in accordance with the attached Schedule of Insurance but only for Coverages specified and subject to the terms, exclusions, limits and conditions contained herein. Period of Insurance: The terms of this Policy shall not be waived or changed, except by amendment issued to form a part of this Policy. This Policy shall not be valid unless each Schedule or amendment attached is signed by an authorized employee of the Company. hereto Retroactive Date: PREMIUM STATEMENT Annual Net Premium: If the word adjustable appears after any premium such premium is subject to the Declaration Conditions of the respective insurance Terms and Conditions: Signed for on behalf of the Company Date

3 COVERAGE The Company will indemnify the Insured up to the Limit of Liability for all sums for which the Insured is legally liable to pay in compensation in respect of any Claim first made against the Insured during period of insurance and notified to the Company, during the Period of Insurance arising out of: Section 1 or Any negligent act, error or omission by or on behalf of the Insured a) In the performance of or failure to perform Electronic Data Processing for others; or Section 2 b) In the performance of or failure to perform Other Computer Services; or or c) Resulting in the failure of the Insured's Software Products to perform the function or serve the purpose intended after installation, testing and final acceptance by the user ; d) In respect of the failure of the Insured's Electronic Products to perform the function or serve the purpose intended after installation, testing and final acceptance by the user. Bodily Injury or Property Damage caused by the Insured s Product arising out of an Occurrence. For avoidance of doubt, damage to the Insurd's Product itself, is excluded from cover.

4 - 4 - Limit of Liability and Self Insured Retention The most the Company will pay in respect of all damages and Claims Expenses for each Claim in excess of the Self Insured Retention stated in the Schedule regardless of the number of a) Insureds or b) Claims brought or c) Persons Is not to exceed the Limit of Liability stated in the Schedule. Subject to the above, the most the Company will pay during any one period of twelve (12) consecutive calendar months or portion thereof, beginning with the Effective date of this Insurance for all damages and Claims Expenses as a result of all Claims is stated as the annual aggregate Limit of Liability in the Schedule. Notwithstanding the above, and solely in respect of a Claim filed against an Insured within the jurisdiction of the courts of Israel and the rest of the world (excluding USA/Canada), it is agreed that pursuant to Section 66 to the Insurance Contract Law, in the event of a Claim, including Claim Expenses, exceeding the Limit of Liability, then this policy shall cover reasonable Claim Expenses exceeding the Limit of Liability. Subject to Section 68 to the Insurance Contract Law, if the Company pays any part or all of the Self Insured Retention to settle any Claim or suit, when notified, the Insured agrees to promptly reimburse the Company for such Self Insured Retention paid. All Claims arising from a single negligent act, error or omission or a series of related negligent acts, errors or omissions shall be deemed to be a single Claim

5 EXCLUSIONS This insurance does not apply to any Claim or Claims Expense arising out of any of the following: 2.1. Performance Delay meaning Delay in performing or failure to complete the insured's obligations as stated in any contract. This exclusion will not apply in respect of delay in performing or failure to complete the insured's obligations as before mentioned arising out of any negligent act, error or omission by or on behalf of the Insured, as detailed in section 1 to the insurance coverage Cost Guarantees meaning Cost guarantees; or estimates of probable costs or cost estimates being exceeded or fines for late delivery resulting from the Insured to meet deadlines Assumed Liability meaning Any liability assumed by the Insured under any contract or agreement (included any express or implied warranty or guarantee) but this exclusion does not apply to liability that the Insured would have in the absence of such contract or agreement Intentional Acts or Intentional Omissions meaning Loss or damage caused intentionally by or at the direction of the Insured Acts Errors or Omissions of a Dishonest Nature meaning Dishonest, fraudulent, criminal or malicious acts, errors or omissions of the Insured; whether acting alone or in collusion with others Product Recall meaning Costs, expenses and damages in respect of the repair, reconditioning, replacement, making good or recall of the Insured's Software Products or the Insured's Electronic Products or of any inadequate or defective workmanship.

6 Electric Power Supply Change meaning Any change in electric power supply, including power interruption or surge, brownout (i.e the reduction in power supply due to drop in voltage ) or blackout (i.e. the total interruption of electric power supply) Wear and Tear meaning wear and tear; or gradual deterioration Security Breach meaning Failure or lack of the Insured's Software Products or the Insured's Electronics Products or electronic data processing handled by the Insured not in the sufficient way of securing this data,resulting unauthorised access to or use of an electronic system or program War, Terrorism, Nuclear and Government Action as defined in Glossary Circumstances prior to the Retroactive Date meaning Any negligent act error or omission which commenced before or damage which occurred prior to the Retroactive Date shown in the Schedule Pollution meaning Damage, Loss or injury arising out of the discharge, dispersal, release or escape of smoke, vapours, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water Fines, penalties, punitive or exemplary damages or any other damage resulting from the multiplication of compensatory damages Actual or alleged infringement of patent copyright, trademark, service mark, design right, registered design right; passing off; theft or misuse of confidential information or other intellectual property, computer systems or programs of others; Personal injury or advertising injury 2.16 Liability imposed on any director, officer or employee, due to activity as a director or officer in any corporation or organization Insolvency or bankruptcy of the Insured.

7 Claims arising from the Insured's economic activities, e.g. money, credit,insurance, real estate business, transaction, cash management or consulting services in connection with these activities Claims arising out of any software which with the insured's knowledge is intended for incorporation into the structure, machinery or controls of any aircraft Loss due to software faults when it is not proven that the sole reason for the loss is software faults Any actual or alleged liability whatsoever for any claim or claims in respect of loss or losses directly or indirectly arising out of, resulting from or in consequence of, or in any way involving asbestos, or any material containing asbestos in whatever form or quantity, provided that the loss or losses are caused or contributed to by the hazardous properties of asbestos Fees and expenses that the insured charged his customers and is required to pay them back Expenses and costs berried by the insured for repair, replacement or reconditioning of a product or work performed by the insured, before loss occurred.

8 GLOSSARY For the purpose of the insurance afforded in this Schedule the following definitions are added to the Policy Glossary: 3.1 Bodily Injury meaning: Bodily injury, sickness or disease sustained by any person including death at any time resulting therefrom 3.2 Claim(s) meaning: a judgement, arbitration award or any demand for money or service or actual damage resulting from negligent act, error or omission. notice given to the Company of any specific event or circumstances that may give rise to a Claim or Claims, that forms the subject of indemnity by this Policy. 3.3 Claims Expense meaning: 1. Reasonable fees charged by an attorney or legal adviser the Company designated to defend the insured or reasonable fees charged by an attorney or legal adviser appointed by the insured; and 2. All other reasonable fees, costs and expenses resulting from the investigation, adjustment, defence and appeal of a Claim.. For the sake of good order, Claims Expense does not include salary of the Company's Regular employees and overhead expenses of the Company. 3.4 Electronic Data Processing meaning: Those activities usual to the processing of data or records, of others. 3.5 Government Action meaning: 1.order of civil authority except acts of destruction at the time of and for the purpose of preventing the spread of fire provided that such fire did not originate from any cause excluded in this coverage; 2.seizure or destruction of property under quarantine or customs regulations; 3.confiscation of property by order of any government or public authority;

9 - 9-4.contraband (i) (ii) Illegal or prohibited traffic; Goods or merchandise whose importation or possession is forbidden. 3.6 Insured meaning: a) The Named Insured specified in the schedule (herein: The Named Insured): b) Any executive officer, director, stockholder, trustee or member of the board of governors thereof and any employee or volunteer worker of the Named Insured but only while acting within the scope of their duties as such; c) Any joint ventures where the Named Insured is engaged in a joint venture that has, by virtue of its share holdings in the joint venture or by any contract has the controlling interest in a joint venture; d) Any Subsidiary of the Named Insured; e) Any customer or principle for whom the Insured is carrying out any work and against whom a claim is brought arising from an Occurrence for which the insured is responsible arising in connection with the carrying out of such work; Provided that such persons or organisations shall observe, fulfil and be subject to the terms, conditions and limits of this insurance and that the conduct an control of all Claims be vested in the Company. 3.7 Insured's Electronic Product(s) meaning: Analysis, design or development of an electronic component, system or program including software, firmware or hardware which the Insured or others trading under the Insured's name manufactured, provided, sold, handled or distributed. 3.8 Insured's Software Product(s) meaning: Non customised computer software which the Insured or others trading under the Insured's name created, manufactured, sold, licensed, handled or distributed provided it is widely available and was sold or supplied for use without the need for specialised installation.

10 Insured s Product(s) meaning: Anything sold, manufactured, supplied, repaired, installed, erected, altered, cleaned or treated by the Insured 3.10 Nuclear meaning: 1. ionising radiations or contaminations by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; 2. the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. 3. nuclear weapons material; or the hazardous properties of nuclear material if such liability arises out of the furnishing by the Insured of services, material, part or equipment in connection with planning, construction, maintenance, operation or use of any Nuclear Facility; 3.11 Nuclear Facility means: a. any nuclear reactor; or b. any equipment or device designed or used for: - separating the isotopes of uranium or plutonium, or - processing or utilising fuel, or - handling, processing or packaging waste; or c. any equipment or devices 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 such premises where such equipment or device is located, consists of or contains more than 25 grams of plutonium or uranium 233 or combination thereof or more than 250 grams of uranium 235; or d. any structure, basin, excavation, premises or place prepared for the storage or disposal of nuclear waste; or e. the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations.

11 Occurrences(s) meaning: An event including continuous or repeated exposure to substantially the same harmful conditions which results in accidental Bodily Injury, Property damage 3.13 Other Computer Services meaning: Computer hardware maintenance for others Personal injury meaning injury, other than bodily injury, arising out of one or more of the following offences committed in the course of the Insured's business, other than its advertising activities: 1. false arrest, detention or imprisonment; 2. malicious prosecution; 3. wrongful entry into, or eviction of a person from a room, dwelling or premises which the person occupies; 4. invasion of the right of privacy; 5. oral or written publication of material which slanders or libels a person or organization, disparages a person's or organization's goods, products or services Pollutants meaning any solid, liquid gaseous or thermal irritant or contaminant including smoke, fumes, acids, alkalis, chemicals, waste, materials to be disposed of, recycled, reconditioned or reclaimed Property Damage meaning physical injury to or destruction of tangible property including loss of use thereof at any time resulting therefrom Self Insured Retention meaning:

12 the amount borne by the Insured in respect of each Claim and Claims Expense before the Company shall become liable to make payment here under Subsidiary meaning Companies in which the Insured, either directly or indirectly, through one or more of its subsidiaries (a) controls the composition of the board of directors; or (b) controls 50% or more of the voting power; or (c) holds 50% or more of the share capital; 3.19 Terrorism meaning : An act including but not limited to the use of force or violence and / or the threat thereof, of any person or group (s) of persons, whether acting alone or on behalf of or in connection with any organization (s) or government (s), committed for political, religious, ideological, or ethnic purposes or reasons including the intention to influence any government and / or to put the public, or any section of the public, in fear War meaning: 1. hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack by: (a)any government or sovereign power (de jure or de facto) or by any authority maintaining or using military, naval or air forces or; (b) military, naval or air forces or; (c) any agent of any such government, power, authority or forces; 2. insurrection, rebellion, revolution, civil war, usurped power, or any activity of any organization the objects of which are or include the overthrowing or influencing of any de jure or de facto government by terrorism or by any violent means, or action taken by governmental authority in hindering, combating or defending against such an occurrence; 3. any weapon of war employing atomic fission, radioactive force or radioactive material, whether in time of peace or war.

13 Discovery Period meaning The time period agreed between the insured and the insurer, according to general condition 4.16 of the policy, beginning at the termination of this policy, in which written notice can be given to the insurer, regarding claim first submitted against the insured during this period, concerning any negligent act, error or omission occurred before the termination of the policy, which covered by this policy.

14 GENERAL INSURANCE CONDITIONS 4.1 How defence will be conducted The insured and/or anyone acting on behalf of the insured are prohibited from making any admission, offer, promise, guarantee or compensation of any type in connection with liability or damage covered under this policy, without receiving the prior written agreement of the insurer. The provisions of this clause do not apply to providing the facts of the insured event to the police or to any other legally authorised entity on demand as well as to the provision of testimony in a criminal trial If the insurer accepts liability under the policy, it is entitled, and at the demand of the third party is liable to pay indemnity to the third party that the insurer is liable to pay to the insured, provided that notice to this effect is sent to the insured 30 days in advance and provided that the insured does not raise any objection during this period. However any allegation that the insurer may invoke against the insured will also be invoked against the third party If the insurer accepts liability under the policy, it is entitled at its discretion to take over and conduct in the name of the insured the defence of any claim or the settlement of any claim as well as to sue and obtain in the name of the insured any indemnity, compensation, contribution or damages. It is agreed that the insurer will make its best efforts to cooperate within the insured and the company in the framework of conducting the defence, in order to avoid harming the reputation of the insured or causing them damage. The insured must submit to the insurer all of the information in their possession and provide any assistance required of them in connection with conducting the defence as stated in this clause If any dispute arises between the insurer and the insured regarding the question of whether to defend or oppose any legal proceedings, neither the insurer nor the insured will be obliged to oppose any legal proceedings other than if a senior lawyer (whose identity will be mutually agreed upon by the policyholder and the insurer, and in the absence of agreement who will be appointed by the head of the Israel Bar Association) recommends opposing the proceedings. The insurer will bear the payment for the said senior lawyer If the total amount of the claim exceeds the limits of liability of the insurer, the insurer, the insured and the company will act in mutual cooperation, and without derogating from the generality of the aforementioned, the insured will be given the right to participate in conducting the defence If the insured refuses unreasonably and/or in bad faith to settle the claim including in the framework of a compromise settlement agreed upon by the insurer, the liability of the insurer will be limited to the amount that the insurer would have paid

15 were it not for the refusal of the insured to the said compromise settlement, plus the legal expenses up to the date on which it would have been possible to settle the claim, provided that the insurer notifies the insured of the proposed settlement 30 days in advance and the insured refuses to approve the settlement The Company will not defend nor pay any suit or any Claim and/or Claims Expense after the exhaustion of the applicable Limit of Liability by payment of Claims or Claims Expense. 4.2 Payment by the Company The Company shall not be liable to pay any amount under this Policy until the amount of the Insured s obligation to pay shall have been finally determined either by judgement against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company. 4.3 Subrogation The Company shall be subrogated to the Insured s rights of recovery against any person or organisation after any payment under this insurance and to the extent of such payment. The Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing after loss to prejudice such rights. The provisions of this clause will not apply if the insured event was caused unintentionally by someone who a reasonable insured would not claim compensation or indemnity from, due to family or employment relations between them. For the purpose of this paragraph, the word Insured includes any Insured. 4.4 Assignment Assignment of interest under this insurance shall not bind the Company without its written consent. If, however, the Insured dies, this insurance shall apply to the Insured's legal representative while acting in the scope of his duties as such or to the person having custody of the Insured's property pending appointment and qualification of a legal representative. 4.5 Disclosure and alteration of material facts If the company posed a question to the insured before issuing the policy, either in the proposal form or by any other written method, regarding a matter which may influence the willingness of a reasonable company to execute the contract at all, or to execute it subject to the conditions stipulated in this policy

16 (hereinafter: material fact ); the insured must provide a full and honest written reply to the question. Intentional nondisclosure by the insured of a fact they knew to be material is tantamount to providing a dishonest and incomplete reply. A broad-ranging question involving various matters without any distinction between them does not need to be replied to as aforementioned other than if it was reasonable at the time of executing the contract If a dishonest and incomplete reply was given regarding a material fact, the following directives will apply: The company is entitled within thirty days of the date on which the matter is brought to its attention, and provided that an insured event has not yet occurred, to cancel the policy by written notice to the insured. If the company cancels the policy as aforementioned, the insured will be entitled to a return premium for the period after the cancellation, less the company s expenses, other than if the insured acted with fraudulent intent If an insured event occurred before the contract was cancelled by virtue of this clause, the company is only liable to make reduced indemnity payments at the ratio between the premium that would usually have been paid in the actual situation and the agreed premium, and will be entirely exempt in any of the following cases: The reply was provided with fraudulent intent A reasonable company would not have issued such a policy even at a much higher premium if it would have been aware of the actual situation. In such a case the insured is entitled to a return premium for the period after occurrence of the insured event, less the company s expenses The company is not entitled to the remedies detailed in clause above in any of the following cases other than if the dishonest and incomplete reply was provided with fraudulent intent:

17 The company knew or should have known the actual situation at the time of issuing the policy or if it caused the dishonest and incomplete reply to be provided The fact on which the incomplete and dishonest reply was provided ceased to apply before occurrence of the insured event, or did not impact its occurrence, the liability of the company or its scope. 4.6 Cancellation This insurance or any coverage included herein may be cancelled at any time by the parties to this insurance by sending thirty days notice by registered letter. In case of cancellation by the Company the Insured shall be entitled to the return of a proportionate part of the premium corresponding to the unexpired Period of Insurance. In case of cancellation by the Insured, the Company shall be entitled to retain the premium calculated for a short term insurance period as customary with the Company. Cancellation of the Policy by the Company for non payment of Premium shall be subject to Section 15 to the Insurance Contract Law. 4.7 Policy Interpretation and Dispute Procedure Any dispute concerning the interpretation of the terms, conditions, limitations and/or exclusions contained in this Policy is subject to laws of the state of Israel including, but not limited, the Insurance Contract Law For the avoidance of doubt, the liability of the insured shall be determined under the applicable law of the jurisdiction wherein the claim arises. Each party agrees to submit to the exclusive jurisdiction of any court of competent jurisdiction within Israel and agree to comply with all requirements necessary to give such court jurisdiction. 4.8 When This Insurance Applies This insurance applies to Claims first made against the Insured during the Period of Insurance. The Claim must be reported to the Company during the Period of Insurance.. If, during the Period of Insurance, the Insured becomes aware of any

18 circumstances which may later give rise to a Claim, and during the Period of Insurance, give the Company written notice of the above, then such written notice will also be considered a Claim hereunder. 4.9 Claim Notification The Insured shall give written notice to the Company of any Claim or proceeding as soon as reasonably practicable after such have come to the knowledge of the Insured or his representative Prohibition of admission, compromise or undertaking to compensate Neither the insured nor anyone acting on behalf of the insured may make any admission, offer, promise, guarantee or compensation of any type in connection with liability or damage covered under this policy, without receiving the prior written agreement of the insurer. The provisions of this clause do not apply to providing the facts of the insured event to the police or to any other legally authorised entity on demand as well as to the provision of testimony in a criminal trial. 4.11Adjustment If any part of the Premium is calculated on estimated annual turnover the Insured shall within one month from the expiry of each Period of Insurance furnish as the actual annual turnover and the Premium for such period shall be adjusted subject to any Minimum Premium Batch / Series clause If the defects in products or their parts which caused the damage to several claimants resulted from one batch or series of production, then all such events shall be considered as one occurrence. In this case only one self insured retention shall apply in respect of all such claims Discovery Period meaning: If the insurer refuses to renew this policy, then the policyholder shall have the right to a discovery period of 12 months following the effective date of nonrenewal: (i) provided the policyholder cannot renew or replace this policy with or cannot purchase, effect or otherwise acquire, any other policy affording Errors & Omissions liability or similar liability cover; and

19 (ii) upon payment of an additional premium of 100% of the full annual premium. To purchase the discovery period, the policyholder must request its purchase in writing within 15 days of the termination date of the policy and must tender the additional premium within 30 days of the termination date. The additional premium is not refundable and the discovery period is not cancelable.