General Conditions of Fidelitiy Insurance _GCI-Fidelity Insurance by liwenting


									                   General Conditions of Fidelitiy Insurance
                   (GCI-Fidelity Insurance 2008)

                   §1      Object of insurance                      §1       Object of insurance                       result of deception on the part of third
                                                                                                                       parties through any form of fraud,
                   §2      Scope of insurance cover                 Euler Hermes Kreditversicherungs-                  counterfeiting of documents or
                                                                    AG (hereinafter referred to as Euler               withholding of documents for the
                   §3      Area of applicability                    Hermes) undertakes to indemnity the                purpose of unlawfully enriching them-
                                                                    Insured for financial loss which he                selves or any other party. This shall
                   §4      Commencement of                          sustains directly as a result of wilful            also apply if the loss takes the form of
                           insurance cover                          and unlawful acts for which compen-                an obligation on the part of the In-
                                                                    sation is payable under statutory                  sured to provide another third party
                   §5      Termination of insurance                 provisions.                                        with compensation.
                                                                    § 2 Scope of insurance cover                       2.    Euler Hermes shall additionally
                   §6      Insured event                                                                               indemnify the Insured - up to the
                                                                    1.    With respect to acts as                      agreed sum insured - for any external
                   §7      Preconditions for                        defined by § 1 GCI, Euler Hermes                   costs in connection with identifying
                           indemnification                          shall provide insurance cover for all              the loss sustained and legal costs
                                                                    loss caused during the duration of the             which can be proved to have arisen
                   §8      Insured persons                          cover, which                                       up to 20 % of the direct insured loss
                                                                                                                       as wall as any additional internal
                   §9      Jointly insured companies                a) is inflicted directly by insured                costs in connection with identifying
                                                                    persons (§ 8 GCI) on the Insured                   the loss sustained and internal legal
                   § 10    Sum insured                                                                                 costs up to 2 % of the direct insured
                                                                    b) is sustained by the Insured as a                loss.
                   § 11    Retention                                result of the fact that he is liable for
                                                                    damage directly inflicted by insured               Any costs beyond this shall also be
                   § 12    Obligations of the Insured               persons upon third parties                         indemnified provided that the Insured
                                                                                                                       first consults with Euler Hermes on
                   § 13    Negligence                               c)     is sustained by the Insured as a            the activities giving rise to such costs.
                                                                    result of the fact that insured persons
                   § 14    Loss not qualifying for in-              wilfully and without authorization                 § 3 Area of applicability
                           demnification                            disclose confidential information,
                                                                    processes, substances or any other                 Insurance cover shall apply on a
                   § 15    Payment of premium                       operating secrets to unauthorized                  world-wide basis.
                                                                    third parties. Notwithstanding § 14
                   § 16    Indemnification payment,                 No. 3 GCI, lost profit shall be                    § 4 Commencement of insurance
                           contract currency,                       covered.                                               cover
                                                                    d) is sustained by the Insured as a                1.   Insurance cover shall com-
                   § 17    Provisional indemnification              result of direct and unlawful inter-               mence on the date stated in the in-
                                                                    ference with the Insured's electronic              surance policy.
                   § 18    Subrogation                              data processing by outside parties,
                                                                    provided that the outside party                    2.    Losses caused prior to the
                   § 19    Termination of the                       enriches itself in respect of the In-              commencement of the insurance
                           insurance policy after the               sured's assets if such loss is caused              policy but not yet known to the In-
                           occurrence of an insured                 during the policy period.                          sured on the date on which the insur-
                           event                                                                                       ance policy was taken out may be co-
                                                                    In addition, the following specific                insured subject to special written
                   § 20    Term of the insurance                    direct pecuniary loss caused wilfully              agreement (retrospective cover).
                           policy                                   by external third parties shall be cov-
                                                                    ered regardless of whether such third              3.    Any persons who are employed
                   § 21    Miscellaneous provisions                 party had any intention to enrich                  for the first time during the term of the
                                                                    himself: recovery costs, cost of re-               policy upon taking up their work for
                                                                    placing the damaged software, data                 the Insured in accordance with their
                                                                    and files as well as any additional                contracts of employment; no premium
                                                                    costs if the Insured is unable to re-              shall be payable in respect of the
                                                                    cover damages elsewhere.                           current policy year.

                                                                    e) is sustained by the Insured
                                                                    during the term of the policy as a

                   Euler Hermes                       Phone +49 (0) 40/88 34-0     Commerzbank AG, Hamburg                     Chairman of the Supervisory Board:
                   Kreditversicherungs-AG             Fax +49 (0) 40/88 34-77 44   BLZ 200 800 00, Account no. 09 157 608 00   Wilfried Verstraete
                   Friedensallee 254, 22763 Hamburg      IBAN: DE46200800000915760800                Board of Management:
                   POB: 22746 Hamburg, GERMANY           BIC: DRESDEFF200                            Ralf Meurer, Chairman;
                                                                                   Turnover Tax ID no. DE 118 617 655          Dr. Hans Janus, Juliane Kutter,
                                                                                   Registered Office: Hamburg                  Gert Schloßmacher, Dr. Robert Walter
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                   § 5 Termination of insurance                Prior to setting a claim, Euler Hermes      against such insured person. § 7
                   cover                                       may at its own expense conduct              No. 2 GCI shall not apply.
                                                               further examinations or retain the
                   1.    With respect to insured persons       services of a surveyor to obtain fur-       § 8 Insured persons
                   who have previously caused an in-           ther information.
                   sured loss, insurance cover of any                                                      Insured persons shall be those per-
                   future acts shall expire upon the date      3.    With respect to losses coming         sons who at the time at which the
                   on which the Insured becomes aware          within the definition contained in § 2      loss is caused are employed under
                   of the unlawful acts.                       No. 1 d) Paragraph 2 GCI, it is as-         employment or service contracts as
                                                               sumed that
                   2.    With respect to insured persons                                                   1.    employees, temporary
                   leaving the Insured's services, insur-      -    the Insured has equipped his IT        employees, interns, apprentices and
                   ance cover shall expire 12 months                systems with protection/firewall       trainees,
                   after they terminate their duties for            facilities to avert the risk of un-
                   the Insured - and at the latest upon             authorized intrusion as well as        2.    members of the management
                   the expiry of the insurance cover -              antivirus software meeting the         board, managing directors, members
                   and with respect to jointly insured              latest technological requirement       of the supervisory or administrative
                   companies, insurance cover shall                 and kept regularly updated;            board provided that they do not hold
                   expire on the day on which the In-          -    unauthorized intrusion is de-          a share of more than 20 % in the
                   sured ceases to be the majority                  tected and recorded by the IT          company's capital,
                   shareholder.                                     systems;
                                                               -    individual passwords are               3.   temporary employees,
                   § 6 Insured event                                assigned for different authoriza-
                                                                    tion levels and replaced once a        4.   persons who work on the
                   The insured event shall be deemed to             month;                                 premises of the Insured in an
                   have occurred if and when an insured        -    data and the latest version of         employee-like position upon the re-
                   person or any third person covered               the programs used are backed           quest of the Insured or a company
                   by this insurance policy commits a               up/duplicated once a day and           commissioned by the Insured.
                   wilful unlawful act as defined by                copies of such backups stored
                   § 1 GCI.                                         separately and securely.               5.    Persons who work on the prem-
                                                                                                           ises of the Insured upon the request
                   § 7 Preconditions for                       4.     In the case of losses caused by      of the Insured or a company commis-
                       indemnification                         insured persons as defined in § 8           sioned by the Insured for the purpose
                                                               No. 2 GCI, the Insured must addi-           of installing, maintaining or managing
                   1.     Indemnification shall be paid        tionally prove that such losses were        IT equipment (hardware) or develop-
                   only after the Insured has proved the       wilfully caused to the detriment of the     ing, maintaining or managing IT pro-
                   liability of the perpetrator for the loss   Insured and with the intention of           grams (software) (IT service staff)
                   specified and identified such person        obtaining an illegal pecuniary advan-       including on a remote basis via data
                   by name as well as the amount of            tage. The intention to obtain higher        transmission.
                   such liability.                             remuneration (salary, wage, bonus,
                                                               benefit, share of profits etc.) shall not   The insured persons as defined in § 8
                   2.     If the Insured is unable to iden-    be sufficient for this purpose. The         Nos. 3 - 5 GCI shall only be deemed
                   tify the perpetrator in spite of investi-   indemnification shall be reduced by a       to be insured persons for the duration
                   gations, indemnification shall never-       percentage equalling the share held         of their contractual activities for the
                   theless be paid if it is evident from the   by the insured persons in the com-          Insured. Euler Hermes shall be liable
                   documents furnished by the Insured          pany's capital as of the date on which      for any loss caused by such persons
                   that on the basis of the course of          the loss was caused.                        only in so far as the Insured is unable
                   events the loss incurred can be                                                         to obtain compensation from any
                   reasonably assumed to come under            5.    In the case of losses coming          other source.
                   the definition contained in §§ 1 and        within the definition contained in § 2
                   2 GCI.                                      No. 1 c) GCI, indemnification shall be      § 9 Jointly insured companies
                                                               contingent upon the amount of and
                   A comparison of the target inventory        reasons for the claim to compensa-          1.    All companies in which the
                   and the actual stock without any            tion held by the Insured against the        Insured holds more than 50 % of the
                   explanation of the reasons for any          insured person in question being            voting capital either directly or indi-
                   discrepancies or statistic data shall       documented in an acknowledgement            rectly shall be jointly insured. The
                   not be sufficient to prove wilful con-      of debt certified by a notary public        provisions applicable to the Insured
                   duct.                                       and subject to compulsory execution         shall apply to the jointly insured com-
                                                               or a legally binding enforceable title      panies accordingly.

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                   2.   All correspondence and pay-           GCI shall be limited to 20 % of the           shall accept the consequences like-
                   ments shall as a matter of principle       agreed sum insured or a maximum of            wise. This shall also apply if the
                   be between Euler Hermes and the            EUR 1,000,000.00.                             knowledge of an Insured is of impor-
                   Insured.                                                                                 tance.
                                                              §11 Retention
                   3.    Any companies coming within                                                        In the event of the Insured failing to
                   the definition in § 9 No. 1 GCI added      1.     The Insured shall bear the re-         comply with any of his statutory or
                   during the term of this policy shall be    tention per claim stated in the               contractual duties, Euler Hermes
                   automatically deemed to be covered         insurance policy.                             shall be released from its liability to
                   as of the data on which they are           2.     If it is not possible for the perpe-   indemnify in accordance with § 28 of
                   acquired or established, it being          trator to be identified by name and if        the Insurance Contract Law.
                   agreed that no additional premiums         no retention or a retention of less
                   shall be payable for the current policy    than EUR 5,000.00 has been agreed             § 13 Negligence
                   year, provided that they are reported      upon pursuant to § 11 No. 1 GCI, the
                   to Euler Hermes in accordance with         indemnification shall be reduced by           The payment of indemnification shall
                   § 12 No. 2 GCI prior to the com-           10 % of the insured loss, however by          not be conditional upon recourse
                   mencement of the next policy year.         no less than EUR 5,000.00 and by no           being taken under civil law against
                   However, in such cases the insur-          more than 10 % of the sum insured. If         insured persons contributing to the
                   ance shall not cover any loss caused       a retention of more than                      loss through negligence only. In re-
                   prior to the inclusion in this cover.      EUR 5,000.00 has been agreed upon             spect of such persons Euler Hermes
                                                              pursuant to § 11 No. 1 GCI, indemni-          waives its right to take recourse.
                   § 10 Sum insured                           fication shall be reduced by no less          However, this shall not prejudice any
                                                              than the sum agreed.                          objections under § 81 of the
                   1.    The sum insured shall be avail-                                                    Insurance Contract Law.
                   able for                                   3.    In the case of losses coming
                                                              within the definition contained in § 2        § 14 Loss not qualifying for in-
                   a) all insured events discovered by        No. 1 c) and § 2 No. 1 d) Paragraph 2         demnification
                   the Insured in the course of a policy      as well as § 2 No. 1 e) GCI, the in-
                   year,                                      demnification shall be reduced by a           The following kinds of damages shall
                                                              retention pursuant to § 11 No. 1 GCI -        not qualify for indemnification:
                   b) all insured events caused during        however by no less than
                   the entire policy period by one person     EUR 25,000.00.                                1.     loss caused by insured persons
                   alone or jointly with other persons                                                      whom the Insured knew had previ-
                   and                                        § 12 Obligations of the Insured               ously committed wilful unlawful acts
                                                                                                            coming within the definition contained
                   c)    all acts resulting in a loss which   1.    The Insured undertakes to in-           in § 1 GCI at the commencement of
                   are committed by one or several            form Euler Hermes in writing of any           the insurance and/or prior to seeking
                   persons if those acts are concurrently     event which after becoming known              their inclusion in the policy;
                   committed and/or are economically or       could prove to be an insured event
                   legally linked with each other, less       and of every insured event immedi-            2.    loss which was caused during
                   the agreed retention.                      ately after becoming aware of such            the term of the policy but which is
                                                              event even if he is not in a position to      reported to Euler Hermes more than
                   2.     If the sum insured is increased,    enter a claim or does not wish to do          two years after the date on which the
                   the difference shall be available only     so.                                           policy expires. § 12 No. 1 GCI shall
                   for any loss/partial loss caused for                                                     not apply;
                   the first time after the date of such      2.     Prior to the beginning of each
                   increase.                                  policy year, the Insured shall report to      3.    indirect loss sustained by the
                                                              Euler Hermes the total number in-             Insured or, in the case of § 2 No. 1 b)
                   3.    Any loss discovered after expiry     sured persons employed at that time           GCI, the aggrieved third party (e.g.
                   of the insurance policy shall be           and the names and addresses of the            lost profit, interest, contractual penal-
                   counted towards the indemnification        jointly insured companies so that the         ties, administrative fines, ransoms,
                   for the last policy year and paid until    next annual premium can be calcu-             extortion money or damages, loss in
                   that amount is used up.                    lated.                                        connection with discrimination and
                                                                                                            disruptions to operations, customs,
                   4.     The indemnification payable for     3.     If the Insured or any of the           levies and fees);
                   all losses discovered in a policy year     jointly insured companies violates
                   and coming within the definition con-      any of the statutory or contractual           4.   loss caused by personally-liable
                   tained in § 2 No. 1 c) and § 2 No. 1 d)    obligations which have been                   shareholders or shareholders holding
                   Paragraph 2 as well as § 2 No. 1 e)        acknowledged, the other Insureds

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                   more than 20 % of the company's             3.      If the insurance is terminated      European Central Bank on the date in
                   capital;                                    prior to the expiry of the policy period    question shall apply.
                                                               or if it is cancelled retroactively after
                   5.    loss caused by external third         its commencement or if it is void right     3.    Rights under the insurance
                   parties as defined in § 2 No. 1 e) GCI      from the beginning, Euler Hermes            policy may be assigned only with
                                                               shall be entitled to claim premium or       Euler Hermes' written consent. The
                   a) loss jointly caused by insured           fees pursuant to the Insurance Con-         defences to which Euler Hermes is
                   persons as defined in § 8 GCI as a          tract Law (e. g. § 39 of the Insurance      entitled as well as the right of set-off
                   result of gross negligence and/or           Contract Law).                              shall continue to apply to the
                   b) loss arising in connection with          4.    The Insured shall not be entitled
                   the - justified or unjustified - grant,     to net any premiums due to Euler            4.   Otherwise, § 14 of the Insur-
                   treatment or handling of loans and          Hermes with claims to indemnification       ance Contract Law shall apply.
                   trade terms including discounting or        under the policy or exercise any right
                   the acceptance of bills of exchange         of retention unless such claims to          § 17 Provisional indemnification
                   and cheques regardless of the facts         indemnification have been acknow-
                   involved as well as loss from the           ledged by Euler Hermes or have              Euler Hermes shall pay provisional
                   acceptance of a guarantee or bond           been upheld in a count of law.              indemnification if proceedings are
                   and the - justified or unjustified -                                                    commenced before a count of civil or
                   postponement, waiver or release of a        § 16 Indemnification payment,               labour law or a public prosecution
                   receivable or loss arising from the         contract currency, assignment               department brings an indictment and
                   fact that the Insured is deceived in                                                    the underlying facts indicate the exis-
                   connection with the acquisition of          1.    Euler Hermes shall pay the            tence of a loss as defined in §§ 1, 2
                   domestic or foreign companies as            indemnification as soon as its liability    GCI. The preliminary indemnification
                   well as real estate, precious stones or     to indemnify and the amount of the          shall equal a maximum of 50 % of the
                   in connection with bills of lading/         indemnification have been estab-            principal amount sought to be recov-
                   waybills;                                   lished.                                     ered in the proceedings or the value
                                                                                                           of the loss cited in the indictment,
                   6.   loss for which cover can be            If the Insurer's liability to indemnify     provided that this is no greater than
                   obtained pursuant to the general            has been established only in respect        EUR 50,000.00.
                   terms and conditions of fire or             of partial amounts of a loss the cir-
                   burglary and housebreaking insur-           cumstances of which have not yet            The provisional indemnification shall
                   ance,                                       been fully clarified, payment shall be      be subject to repayment. The provi-
                                                               effected for such partial amounts.          sional status shall be discharged if
                   7.    loss caused wholly or partly by                                                   the final judgement brought down in
                   war, war-like events, domestic unrest,      2.     The contract currency shall be       the proceedings concerned confirms
                   terror, government acts, force              the euro (EUR). If a loss is sustained      the existence of a loss as defined in
                   majeure, nuclear energy or environ-         in a different currency, the indemnifi-     §§ 1, 2 GCI. This shall not prejudice
                   mental influences as defined by the         cation shall be converted using the         any objections or exclusions provided
                   Environmental Liability Act or the          reference exchange rate prevailing          for in the policy, the GCI or the Insur-
                   Water Resources Act.                        on the date on which the insured            ance Contract Law.
                                                               event occurs. However, if this ex-
                   § 15 Payment of premium                     change rate is higher than that fixed       § 18 Subrogation
                                                               on the day on which the written loss
                   1.    The Insured shall pay the first       notification is received by Euler           1.    The payment of indemnification
                   premium immediately after the expiry        Hermes, the latter shall be applicable.     shall not release the perpetrator of
                   of two weeks upon the delivery of the       In the case of sequential loss the          the loss of his duty to pay compensa-
                   policy; ensuing premiums shall be           exchange rate fixed on the date on          tion.
                   payable at the beginning of each            which the last wilful act was commit-
                   policy year or on the due date of           ted shall be applicable. However, if        2.    Entitlement to compensation
                   payment agreed upon.                        this is higher than the exchange rate       held by the Insured against the in-
                                                               fixed on the day on which the last          sured person or a third party on ac-
                   2.    If the first premium is not paid in   loss notification is received, the latter   count of an insured event shall pass
                   time, the consequences shall be as          shall be applicable.                        to Euler Hermes pursuant to § 86 of
                   described in § 37 of the Insurance                                                      the Insurance Contract Law to the
                   Contract Law; otherwise, § 38 of the        In the case of non-quoted currencies,       extent that Euler Hermes indemnifies
                   Insurance Contract Law shall apply.         the exchange rate fixed by Deutsche         the Insured for such loss. At Euler
                                                               Bundesbank or, alternatively, the           Hermes' request, the Insured shall
                                                                                                           confirm such subrogation in writing.

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                   In the event that the pertinent rights   Euler Hermes three months prior to
                   and any rights granted to secure         its date of expiry.
                   entitlement to damages are not sub-
                   rogated by operation of law, the In-     § 21 Miscellaneous provisions
                   sured shall transfer them to Euler
                   Hermes.                                  1.    In the absence of any other
                                                            statutory or contractual stipulations,
                   3.    The Insured's claim for dam-       all declarations relating to the con-
                   ages to which he is entitled because     tractual relationship given by or to
                   of the retention which he is required    Euler Hermes shall be binding only if
                   to bear is herewith ceded to Euler       served in writing on or by Euler
                   Hermes in the event that Euler Her-      Hermes. Euler Hermes shall be
                   mes takes recourse action. Any           deemed to have met the require-
                   amounts recovered by Euler Hermes        ments in respect of written from even
                   from recourse proceedings shall be       with documents which are drawn up
                   apportioned according to the ratio       by computer and are valid as such
                   between the indemnification paid and     without signature.
                   the Insured's retention less execution
                   or court costs.                          2.    The place of jurisdiction in re-
                                                            spect of any disputes arising under
                   §19 Termination of the insurance         the insurance policy shall be
                   policy after the occurrence of an        Hamburg if the Insured has been
                   insured event                            entered in the commercial register as
                                                            a merchant or if he does not have
                   1.    After a claim has been entered     any general place of jurisdiction in
                   both Euler Hermes and the Insured        Germany or if he moves his regis-
                   shall be entitled to terminate the       tered office abroad after taking out
                   insurance policy.                        insurance or if his registered office or
                                                            normal place of residence is not
                   2.    Notice of termination must be      known at the time when a case is
                   given in writing. It must be received    filed against him. In all other cases
                   no later than one month after the        the regulations of §§ 17, 21 and 29 of
                   conclusion of the negotiations with      the Code of Civil Procedure and
                   respect Euler Hermes' obligation to      § 215 of the Insurance Contract Law
                   indemnify.                               in respect of domestic places of juris-
                                                            diction shall apply.
                   3.    The Underwriting shall give one
                   month's notice of termination. The       3.   Unless otherwise stipulated in
                   Insured may state whether the notice     the Condition of Insurance and the
                   of termination given by him shall take   Additional Conditions or in a special
                   effect immediately or at a later date,   agreement, German law shall apply.
                   however, the latest possible date
                   shall be the end of the current policy

                   4.    If after the occurrence of an
                   insured event notice of termination is
                   given, Euler Hermes shall be entitled
                   to receive the prorated premium in
                   accordance with § 39 of the Insur-
                   ance Contract Law.

                   § 20 Term of insurance policy

                   The policy shall be extended by one
                   year at a time from year to year,
                   unless notice of termination is given
                   in writing either by the Insured or

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