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General Conditions of Fidelity Insurance _GCI–Fidelity Insurance

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					General Conditions of Fidelity Insurance
(GCI–Fidelity Insurance 2006)



§1     Object of insurance                                        § 2 Scope of insurance cover

§2     Scope of insurance cover                                   1. With respect to acts as defined by § 1 GCI, Euler Hermes
                                                                     shall provide insurance cover for all loss caused during
§3     Area of applicability                                         the duration of the cover, which

§4     Commencement of insurance cover                               a)    is inflicted directly by insured persons (§ 8 GCI) on
                                                                           the Insured
§5     Termination of insurance cover
                                                                     b)    is sustained by the Insured as a result of the fact
§6     Insured event                                                       that he is liable for damage directly inflicted by
                                                                           insured persons upon third parties
§7     Preconditions for indemnification
                                                                     c)    is sustained by the Insured as a result of the fact
§8     Insured persons                                                     that insured persons wilfully and without
                                                                           authorization disclose confidential information,
§9     Jointly insured companies                                           processes, substances or any other operating
                                                                           secrets     to    unauthorized    third      parties.
§ 10   Sum insured                                                         Notwithstanding § 14 No. 3 GCI, lost profit shall be
                                                                           covered.
§ 11   Retention
                                                                     d)    is sustained by the Insured as a result of direct and
§ 12   Obligations of the Insured                                          unlawful interference with the Insured’s electronic
                                                                           data processing by outside parties, provided that
§ 13   Negligence                                                          the outside party enriches itself in respect of the
                                                                           Insured’s assets if such loss is caused during the
§ 14   Loss not qualifying for indemnification                             policy period.

§ 15   Payment of premium                                                  In addition, the following specific direct pecuniary
                                                                           loss caused wilfully by external third parties shall
§ 16   Indemnification payment, contract currency,                         be covered regardless of whether such third party
       assignment                                                          had any intention to enrich himself: recovery costs,
                                                                           cost of replacing the damaged software, data and
§ 17   Provisional indemnification                                         files as well as any additional costs if the Insured is
                                                                           unable to recover damages elsewhere.
§ 18   Subrogation
                                                                     e)    is sustained by the Insured during the term of the
§ 19   Termination of the insurance policy after the                       policy as a result of deception on the part of third
       occurrence of an insured event                                      parties through any form of fraud, counterfeiting of
                                                                           documents or withholding of documents for the
§ 20   Term of the insurance policy                                        purpose of unlawfully enriching themselves or any
                                                                           other party. This shall also apply if the loss takes
§ 21   Limitation of action, limitation period                             the form of an obligation on the part of the Insured
                                                                           to provide another third party with compensation.
§ 22   Miscellaneous provisions
                                                                  2. Euler Hermes shall additionally indemnify the Insured –
                                                                     up to the agreed sum insured – for any external costs in
                                                                     connection with identifying the loss sustained and legal
                                                                     costs which can be proved to have arisen up to 20% of
                                                                     the direct insured loss as well as any additional internal
§ 1 Object of insurance                                              costs in connection with identifying the loss sustained
                                                                     and internal legal costs up to 2% of the direct insured
Euler Hermes Kreditversicherungs-AG (hereinafter referred to         loss.
as Euler Hermes) undertakes to indemnify the Insured for
financial loss which he sustains directly as a result of wilful      Any costs beyond this shall also be indemnified provided
and unlawful acts for which compensation is payable under            that the Insured first consults with Euler Hermes on the
statutory provisions.                                                activities giving rise to such costs.
§ 3 Area of applicability                                                –    the Insured has equipped his IT systems with
                                                                              protection/firewall facilities to avert the risk of
Insurance cover shall apply on a world-wide basis                             unauthorized intrusion as well as antivirus software
                                                                              meeting the latest technological requirements and
§ 4 Commencement of insurance cover                                           kept regularly updated;
                                                                         –    unauthorized intrusion is detected and recorded by
1. Insurance cover shall commence on the date stated in                       the IT systems;
   the insurance policy.                                                 –    individual passwords are assigned for different
                                                                              authorization levels and replaced once a month;
2. Losses caused prior to the commencement of the                        –    data and the latest version of the programs used
   insurance policy but not yet known to the Insured on the                   are backed up/duplicated once a day and copies of
   date on which the insurance policy was taken out may be                    such backups stored separately and securely.
   co-insured subject to special written agreement
   (retrospective cover).                                           4.   In the case of losses caused by insured persons as
                                                                         defined in § 8 No. 2 GCI, the Insured must additionally
3. Any persons who are employed for the first time during                prove that such losses were wilfully caused to the
   the term of the policy shall be automatically included in             detriment of the Insured and with the intention of
   the insurance policy upon taking up their work for the                obtaining an illegal pecuniary advantage. The intention
   Insured in accordance with their contracts of employment;             to obtain higher remuneration (salary, wage, bonus,
   no premium shall be payable in respect of the current                 benefit, share of profits etc.) shall not be sufficient for
   policy year.                                                          this purpose. The indemnification shall be reduced by a
                                                                         percentage equalling the share held by the insured
§ 5 Termination of insurance cover                                       persons in the company’s capital as of the date on
                                                                         which the loss was caused.
1. With respect to insured persons who have previously
   caused an insured loss, insurance cover of any future            5. In the case of losses coming within the definition
   acts shall expire upon the date on which the Insured                contained in § 2 No. 1 c) GCI, indemnification shall be
   becomes aware of the unlawful acts.                                 contingent upon the amount of and reasons for the claim
                                                                       to compensation held by the Insured against the insured
2. With respect to insured persons leaving the Insured’s               person in question being documented in an
   services, insurance cover shall expire 12 months after              acknowledgement of debt certified by a notary public and
   they terminate their duties for the Insured - and at the            subject to compulsory execution or a legally binding
   latest upon the expiry of the insurance cover - and with            enforceable title against such insured person. § 7 No. 2
   respect to jointly insured companies, insurance cover               GCI shall not apply.
   shall expire on the day on which the Insured ceases to be
   the majority shareholder.                                        § 8 Insured persons

§ 6 Insured event                                                   Insured persons shall be those persons who at the time at
                                                                    which the loss is caused are employed under employment or
The insured event shall be deemed to have occurred if and           service contracts as
when an insured person or any third person covered by this
insurance policy commits a wilful unlawful act as defined by §      1. employees, temporary employees, interns, apprentices
1 GCI.                                                                      and trainees,

§ 7 Preconditions for indemnification                               2. members of the management board, managing directors,
                                                                       members of the supervisory or administrative board
1. Indemnification shall be paid only after the Insured has            provided that they do not hold a share of more than 20%
   proved the liability of the perpetrator for the loss specified      in the company’s capital,
   and identified such person by name as well as the
   amount of such liability.                                        3. temporary employees,

2. If the Insured is unable to identify the perpetrator in spite    4. persons who work on the premises of the Insured in an
   of investigations, indemnification shall nevertheless be            employee-like position upon the request of the Insured or
   paid if it is evident from the documents furnished by the           a company commissioned by the Insured.
   Insured that on the basis of the course of events the loss
   incurred can be reasonably assumed to come under the             5. Persons who work on the premises of the Insured upon
   definition contained in §§ 1 and 2 GCI.                             the request of the Insured or a company commissioned
                                                                       by the Insured for the purpose of installing, maintaining or
    A comparison of the target inventory and the actual stock          managing IT equipment (hardware) or developing,
    without any explanation of the reasons for any                     maintaining or managing IT programs (software) (IT
    discrepancies or statistic data shall not be sufficient to         service staff) including on a remote basis via data
    prove wilful conduct.                                              transmission.

    Prior to settling a claim, Euler Hermes may at its own          The insured persons as defined in § 8 Nos. 3 – 5 GCI shall
    expense conduct further examinations or retain the              only be deemed to be insured persons for the duration of
    services of a surveyor to obtain further information.           their contractual activities for the Insured. Euler Hermes shall
                                                                    be liable for any loss caused by such persons only in so far
3. With respect to losses coming within the definition              as the Insured is unable to obtain compensation from any
   contained in § 2 No. 1 d) Paragraph 2 GCI, it is assumed         other source.
   that
§ 9 Jointly insured companies                                      § 12 Obligations of the Insured

1. All companies in which the Insured holds more than 50%          1. The Insured undertakes to inform Euler Hermes in writing
   of the voting capital either directly or indirectly shall be       of any event which after becoming known could prove to
   jointly insured. The provisions applicable to the Insured          be an insured event and of every insured event
   shall apply to the jointly insured companies accordingly.          immediately after becoming aware of such event even if
                                                                      he is not in a position to enter a claim or does not wish to
2. All correspondence and payments shall as a matter of               do so.
   principle be between Euler Hermes and the Insured.
                                                                   2. Prior to the beginning of each policy year, the Insured
3. Any companies coming within the definition in § 9 No. 1            shall report to Euler Hermes the total number insured
   GCI added during the term of this policy shall be                  persons employed at that time and the names and
   automatically deemed to be covered as of the date on               addresses of the jointly insured companies so that the
   which they are acquired or established, it being agreed            next annual premium can be calculated.
   that no additional premiums shall be payable for the
   current policy year, provided that they are reported to         3. If the Insured or any of the jointly insured companies
   Euler Hermes in accordance with § 12 No. 2 GCI prior to            violates any of the statutory or contractual obligations
   the commencement of the next policy year. However, in              which have been acknowledged, the other Insureds shall
   such cases the insurance shall not cover any loss caused           accept the consequences likewise. This shall also apply if
   prior to the inclusion in this cover.                              the knowledge of an Insured is of importance.

§ 10 Sum insured                                                   In the event of the Insured failing to comply with any of his
                                                                   statutory or contractual duties, Euler Hermes shall be
1. The sum insured shall be available for                          released from its liability to indemnify in accordance with
                                                                   Section 6 of the Insurance Contract Law. Notice of
    a)    all insured events discovered by the Insured in the      termination pursuant to Section 6 (1) of the Insurance
          course of a policy year,                                 Contract Law shall not be required if the insurance cover in
                                                                   respect of the insured person in question has already expired
    b)    all insured events caused during the entire policy       pursuant to § 5 No. 1 GCI.
          period by one person alone or jointly with other
          persons and                                              § 13 Negligence

    c)    all acts resulting in a loss which are committed by      The payment of indemnification shall not be conditional upon
          one or several persons if those acts are                 recourse being taken under civil law against insured persons
          concurrently committed and/or are economically or        contributing to the loss through negligence only. In respect of
          legally linked with each other, less the agreed          such persons Euler Hermes waives its right to take recourse.
          retention.                                               However, this shall not prejudice any objections under § 61 of
                                                                   the Insurance Contract Law.
2. If the sum insured is increased, the difference shall be
   available only for any loss/partial loss caused for the first   § 14 Loss not qualifying for indemnification
   time after the date of such increase.
                                                                   The following kinds of damages shall not qualify for
3. Any loss discovered after expiry of the insurance policy        indemnification:
   shall be counted towards the indemnification for the last
   policy year and paid until that amount is used up.              1. loss caused by insured persons whom the Insured knew
                                                                      had previously committed wilful unlawful acts coming
4. The indemnification payable for all losses discovered in a         within the definition contained in § 1 GCI at the
   policy year and coming within the definition contained in §        commencement of the insurance and/or prior to seeking
   2 No. 1 c) and § 2 No. 1 d) Paragraph 2 as well as § 2 No.         their inclusion in the policy;
   1 e) GCI shall be limited to 20 % of the agreed sum
   insured or a maximum of EUR 1,000,000.00.                       2. loss which was caused during the term of the policy but
                                                                      which is reported to Euler Hermes more than two years
§ 11 Retention                                                        after the date on which the policy expires. § 12 No. 1 GCI
                                                                      shall not apply;
1. The Insured shall bear the retention per claim stated in
   the insurance policy.                                           3. indirect loss sustained by the Insured or, in the case of §
                                                                      2 No. 1 b) GCI, the aggrieved third party (e.g. lost profit,
2. If it is not possible for the perpetrator to be identified by      interest, contractual penalties, administrative fines,
   name and if no retention or a retention of less than EUR           ransoms, extortion money or damages, loss in
   5,000.00 has been agreed upon pursuant to § 11 No. 1               connection with discrimination and disruptions to
   GCI, the indemnification shall be reduced by 10% of the            operations, customs, levies and fees);
   insured loss, however by no less than EUR 5,000.00 and
   by no more than 10% of the sum insured. If a retention of       4. loss caused by personally-liable shareholders or
   more than EUR 5,000.00 has been agreed upon pursuant               shareholders holding more than 20% of the company’s
   to § 11 No. 1 GCI, indemnification shall be reduced by no          capital;
   less than the sum agreed.
                                                                   5. loss sustained by external third parties as defined in § 2
3. In the case of losses coming within the definition                 No. 1 e) GCI
   contained in § 2 No. 1 c) and § 2 No. 1 d) Paragraph 2 as
   well as § 2 No. 1 e) GCI, the indemnification shall be              a)    loss jointly caused by insured persons as defined in
   reduced by a retention pursuant to § 11 No. 1 GCI –                       § 8 GCI as a result of gross negligence and/or
   however by no less than EUR 25,000.00.
    b)    loss arising in connection with the – justified or            rate fixed on the day on which the last loss notification is
          unjustified – grant, treatment or handling of loans           received, the latter shall be applicable.
          and trade terms including discounting or the
          acceptance of bills of exchange and cheques                   In the case of non-quoted currencies, the exchange rate fixed by
          regardless of the facts involved as well as loss from         Deutsche Bundesbank or, alternatively, the European Central
          the acceptance of a guarantee or bond and the –               Bank on the date in question shall apply.
          justified or unjustified – postponement, waiver or
          release of a receivable or loss arising from the fact    3. Rights under the insurance policy may be assigned only
          that the Insured is deceived in connection with the         with Euler Hermes’ written consent. The defences to
          acquisition of domestic or foreign companies as             which Euler Hermes is entitled as well as the right of set-
          well as real estate, precious stones or in                  off shall continue to apply to the assignee.
          connection with bills of lading/waybills;
                                                                   4.    Otherwise, Section 11 of the Insurance Contract Law shall
6. loss for which cover can be obtained pursuant to the                 apply.
   general terms and conditions of fire or burglary and
   housebreaking insurance,                                        § 17 Provisional indemnification

7. loss caused wholly or partly by war, war-like events,           Euler Hermes shall pay provisional indemnification if
   domestic unrest, terror, government acts, force majeure,        proceedings are commenced before a court of civil or labour
   nuclear energy or environmental influences as defined by        law or a public prosecution department brings an indictment
   the Environmental Liability Act or the Water Resources          and the underlying facts indicate the existence of a loss as
   Act.                                                            defined in §§ 1, 2 GCI. The preliminary indemnification shall
                                                                   equal a maximum of 50% of the principal amount sought to
§ 15 Payment of premium                                            be recovered in the proceedings or the value of the loss cited
                                                                   in the indictment, provided that this is no greater than EUR
1. The Insured shall pay the first premium upon the delivery       50,000.00.
   of the policy; ensuing premiums shall be payable at the
   beginning of each policy year or on the due date of             The provisional indemnification shall be subject to repayment.
   payment agreed upon.                                            The provisional status shall be discharged if the final
                                                                   judgement brought down in the proceedings concerned
2. If the first premium is not paid in time, the consequences      confirms the existence of a loss as defined in §§ 1, 2 GCI.
   shall be as described in Section 38 of the Insurance            This shall not prejudice any objections or exclusions provided
   Contract Law; otherwise, Section 39 of the Insurance            for in the policy, the GCI or the Insurance Contract Law.
   Contract Law shall apply.
                                                                   § 18 Subrogation
3. If the insurance is terminated prior to the expiry of the
   policy period or if it is cancelled retroactively after its     1. The payment of indemnification shall not release the
   commencement or if it is void right from the beginning,            perpetrator of the loss of his duty to pay compensation.
   Euler Hermes shall be entitled to claim premium or fees
   pursuant to the Insurance Contract Law (e.g. Section 40         2. Entitlement to compensation held by the Insured against
   of the Insurance Contract Law).                                    the insured person or a third party on account of an
                                                                      insured event shall pass to Euler Hermes pursuant to
4. The Insured shall not be entitled to net any premiums due          Section 67 of the Insurance Contract Law to the extent
   to Euler Hermes with claims to indemnification under the           that Euler Hermes indemnifies the Insured for such loss.
   policy or exercise any right of retention unless such              At Euler Hermes’ request, the Insured shall confirm such
   claims to indemnification have been acknowledged by                subrogation in writing. In the event that the pertinent
   Euler Hermes or have been upheld in a court of law.                rights and any rights granted to secure entitlement to
                                                                      damages are not subrogated by operation of law, the
§ 16 Indemnification payment, contract currency,                      Insured shall transfer them to Euler Hermes.
assignment
                                                                   3. The Insured’s claim for damages to which he is entitled
1. Euler Hermes shall pay the indemnification as soon as its          because of the retention which he is required to bear is
   liability to indemnify and the amount of the                       herewith ceded to Euler Hermes in the event that Euler
   indemnification have been established.                             Hermes takes recourse action. Any amounts recovered
                                                                      by Euler Hermes from recourse proceedings shall be
    If the Insurer’s liability to indemnify has been established      apportioned according to the ratio between the
    only in respect of partial amounts of a loss the                  indemnification paid and the Insured’s retention less
    circumstances of which have not yet been fully clarified,         execution or court costs.
    payment shall be effected for such partial amounts.
                                                                   § 19 Termination of the insurance policy after the
2. The contract currency shall be the euro (EUR). If a loss is     occurrence of an insured event
   sustained in a different currency, the indemnification shall
   be converted using the reference exchange rate                  1. After a claim has been entered both Euler Hermes and
   prevailing on the date on which the insured event occurs.          the Insured shall be entitled to terminate the insurance
   However, if this exchange rate is higher than that fixed on        policy.
   the day on which the written loss notification is received
   by Euler Hermes, the latter shall be applicable. In the         2. Notice of termination must be given in writing. It must be received
   case of sequential loss the exchange rate fixed on the             no later than one month after the conclusion of the negotiations with
   date on which the last wilful act was committed shall be           respect to Euler Hermes’ obligation to indemnify.
   applicable. However, if this is higher than the exchange
3. The Underwriter shall give one month’s notice of
   termination. The Insured may state whether the notice of
   termination given by him shall take effect immediately or
   at a later date, however, the latest possible date shall be
   the end of the current policy year.

4. If after the occurrence of an insured event notice of
   termination is given
   –      by the Insured, Euler Hermes shall be entitled to
          receive the premium for the current policy year;
   –      by Euler Hermes, the same shall apply with respect
          to the part of the premium which counts towards
          the amount of the sum insured equalling the loss;
          of the premium covering the balance of the sum
          insured, the Insurer shall only be entitled to retain
          the part covering the current policy period.

§ 20 Term of the 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 Euler Hermes three months prior to its date
of expiry.

§ 21 Limitation of action, limitation period

Limitation of action in respect of a claim under the policy and
the period for the institution of proceedings which has to be
observed shall be governed by Section 12 of the Insurance
Contract Law.

§ 22 Miscellaneous provisions

1.   All declarations relating to the contractual relationship
     required to be given by or to Euler Hermes shall be
     binding only if served in writing on or by Euler Hermes.
     Euler Hermes shall be deemed to have met the
     requirements in respect of written form even with
     documents which are drawn up by computer and are
     valid as such without signature.

2. The place of jurisdiction in respect of any disputes arising
   under the insurance policy shall be Hamburg if the
   Insured has been entered in the commercial register as a
   merchant or if he does not have any general place of
   jurisdiction in Germany or if he moves his registered
   office abroad after taking out insurance or if his registered
   office or normal place of residence is not known at the
   time when a case is filed against him. In all other cases
   the regulations of Sections 17, 21 and 29 of the Code of
   Civil Procedure and Section 48 of the Insurance Contract
   Law in respect of domestic places of jurisdiction shall
   apply.

3. Unless otherwise stipulated in the Conditions of
   Insurance and the Additional Conditions or in a special
   agreement, German law shall apply.

				
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