NUCLEAR INCIDENT EXCLUSION CLAUSE-LIABILITY-DIRECT (BROAD) (U.S.A.)
For attachment to insurances of the following classifications in the U.S.A., its Territories and Possessions, Puerto Rico, and the Canal Zone:
Owners, Landlords and Tenants Liability, Contractual Liability, Elevator Liability, Owners or Contractors (including railroad) Protective Liability, Manufacturers and Contractors Liability, Product Liability, Professional and Malpractice Liability, Storekeepers Liability, Garage Liability, Automobile Liability (including Massachusetts Motor Vehicle or Garage Liability),
not being insurances of the classifications to which the Nuclear Incident Exclusion Clause Liability-Direct (Limited) applies.
This Policy* does not apply:
- Under any Liability Coverage, to injury, sickness, disease, death, or destruction
- with respect to which an insured under the Policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters, or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or
- resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this Policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization.
- Under any Medical Payments Coverage, or under any Supplementary Payments Provision relating to immediate medical or surgical relief, to expenses incurred with respect to bodily injury, sickness, disease, or death resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization.
- Under any Liability Coverage, to injury, sickness, disease, death, or destruction resulting from the hazardous properties of nuclear material, if
- the nuclear material (1) is at any nuclear facility owned by or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom;
- the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported, or disposed of by or on behalf of an insured; or
- the injury, sickness, disease, death, or destruction arises out of the furnishing by an insured of services, materials, parts, or equipment in connection with the planning, construction, maintenance, operation, or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this exclusion (c) applies only to injury to or destruction of property at such nuclear facility.
- As used in this endorsement: "hazardous properties" include radioactive, toxic or explosive properties; "nuclear material" means source material, special nuclear material or by-product material; "source material", "special nuclear material", and "by-product material" have the meanings given them in the Atomic Energy Act 1954 or in any law amendatory thereof; "spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; "waste" means any waste material (1) containing by-product material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of the nuclear facility under paragraph (a) or (b) thereof; "nuclear facility" means
- any nuclear reactor,
- any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing, or packaging waste,
- any equipment or device used for the processing, fabricating, or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235,
- any structure, basin, excavation, premises, or place prepared or used for the storage or disposal of waste,
and includes the site on which any of the foregoing is located, all operations conducted on such site, and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material. With respect to injury to or destruction of property, the word "injury” or "destruction" includes all forms of radioactive contamination of property.
It is understood and agreed that, except as specifically provided in the foregoing to the contrary, this clause is subject to the terms, exclusions, conditions, and limitations of the Policy to which it is attached.
* NOTE: As respects policies that afford liability coverages and other forms of coverage in addition, the words underlined should be amended to designate the liability coverage to which this clause is to apply.
SANCTION LIMITATION AND EXCLUSION CLAUSE
No (re)insurer shall be deemed to provide cover and no (re)insurer shall be liable to pay any claim or provide any benefit hereunder to the extent that the provision of such cover, payment of such claim, or provision of such benefit would expose that (re)insurer to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom or the United States of America.
U.S. Terrorism Risk Insurance Act of 2002 as amended Not Purchased Clause
This Clause is issued in accordance with the terms and conditions of the "U.S. Terrorism Risk Insurance Act of 2002" as amended as summarized in the disclosure notice.
It is hereby noted that the Underwriters have made available coverage for “insured losses” directly resulting from an "act of terrorism" as defined in the "U.S. Terrorism Risk Insurance Act of 2002", as amended (“TRIA”) and the Insured has declined or not confirmed to purchase this coverage.
This Insurance, therefore, affords no coverage for losses directly resulting from any "act of terrorism" as defined in TRIA except to the extent, if any, otherwise provided by this policy.
All other terms, conditions, insured coverage, and exclusions of this Insurance including applicable limits and deductibles remain unchanged and apply in full force and effect to the coverage provided by this Insurance.
SERVICE OF SUIT CLAUSE (U.S.A.)
This Service of Suit Clause will not be read to conflict with or override the obligations of the parties to arbitrate their disputes as provided for in any Arbitration provision within this Policy. This Clause is intended as an aid to compelling arbitration or enforcing such arbitration or arbitral award, not as an alternative to such Arbitration provision for resolving disputes arising out of this contract of insurance (or reinsurance).
It is agreed that in the event of the failure of the Underwriters hereon to pay any amount claimed to be due hereunder, the Underwriters hereon, at the request of the Insured (or Reinsured), will submit to the jurisdiction of a Court of competent jurisdiction within the United States. Nothing in this Clause constitutes or should be understood to constitute a waiver of Underwriters rights to commence an action in any Court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States or of any State in the United States.
It is further agreed that service of process in such suit may be made upon
Foley & Larder LLP, 555 California Street, Suite 1700, San Francisco, CA 94104, United States of America
and that in any suit instituted against any one of them upon this contract, Underwriters will abide by the final decision of such Court or of any Appellate Court in the event of an appeal.
The above-named are authorized and directed to accept service of process on behalf of Underwriters in any such suit and/or upon the request of the Insured (or Reinsured) to give a written undertaking to the Insured (or Reinsured) that they will enter a general appearance upon Underwriters’ behalf in the event such a suit shall be instituted.
Further, pursuant to any statute of any state, territory or district of the United States which makes provision therefor, Underwriters hereon hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Insured (or Reinsured) or any beneficiary hereunder arising out of this contract of insurance (or reinsurance), and hereby designate the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof.
SELF INSURED RETENTION LIABILITY INSURANCE
APPLICATION OF ENDORSEMENT (Enter below any limitations on the application of this endorsement. If no limitation is entered, the Self-Insured Retentions are eroded by defense costs and apply to damages for all "bodily injury" and "property damage" however caused):
- Our obligation under the Liability Coverage to pay damages on your behalf applies only to the number of damages in excess of any Self-Insured Retention amounts stated in the Schedule above as applicable to such coverages, and the limits of insurance applicable to each “accident” for such coverages will apply excess of such Self-Insured Retention.
- The Self-Insured Retention amounts stated in the Schedule apply under Liability Coverage combined to all damages because of "bodily injury" and "property damage" as the result of anyone "accident" regardless of the number of persons or organizations who sustain damages because of that "accident."
- The terms of this insurance, including those with respect to:
- Our right and duty to defend any "suits" seeking those damages; and
- Your duties in the event of an "accident”, claim, “loss” or “suit”
apply irrespective of the application of the Self-Insured Retention amount.
- We may pay any part or all of the Self-Insured Retention amount to effect settlement of any claim or “suit” and, upon notification of the action taken, you shall promptly reimburse us for such part of the Self-Insured Retention amount as has been paid by us.
- The insolvency, bankruptcy, receivership, or any refusal or inability to pay the Self-Insured Retention of you and/or of any insurer ensuring such Self-Insured Retention shall not operate to:
- deplete the Self-Insured Retention set out in the Declarations;
- increase our liability under this Policy;
- increase any insurer’s share of liability under this Policy;
- relieve us from the payment of any “bodily injury” or “property damage” under this Policy.
SEXUAL ABUSE AND MOLESTATION EXCLUSION
This insurance does not apply to any loss, cost, damage, expense, injury, claim or suit, caused by, arising out of, or resulting directly or indirectly, in whole or in part:
- Actual threatened or attempted "sexual abuse". "Sexual abuse" means sexual conduct, including but not limited to:
- Sexual intercourse, including but not limited to any kind of sexual penetration, of any bodily orifice or part;
- Sexual molestation;
- Sexually explicit, sexually-oriented, or sexually suggestive language, images, acts, or statements;
- Inappropriate touching, including but not limited to any, kissing or fondling of any bodily part, including but not limited to genitalia;
- Sexual exhibitionism;
- Voyeurism; or
- Photographic, audio, video, or digital recording or the showing of any of the foregoing,
committed by or alleged to have been committed by any Insured or any person working for or on behalf of the Insured or any contractor or any other individual who is performing work arising from the use of the Insured’s online platform, application, or company whether the injury was intended or not.
ASSAULT AND BATTERY EXCLUSION
This insurance does not apply to any loss, cost, damage, expense, injury, claim or suit, caused by, arising out of, or resulting directly or indirectly, in whole or in part from assault and/or battery of any person committed by or alleged to have been committed by any Insured or any person working for or on behalf of the Insured or any contractor or any other individual who is performing work arising from the use of the Insured’s online platform, application or company whether the injury was intended or not.
HAZARDOUS MATERIALS EXCLUSION
The following exclusion is added to paragraph 2. B Exclusions of SECTION II - LIABILITY COVERAGE of the policy.
This insurance does not apply to "bodily injury" or "property damage" that is directly or indirectly caused by or arises out of asbestos, mold, chromium copper arsenate (CCA), Exterior Insulation and Finish System (EIFS), coal dust, polychlorinated biphenyls, methyl tertiary butyl ether/ethyl, benzene, talc, dioxin, pesticides or herbicides, silica or lead; or any substance containing such material or any derivative thereof or electromagnetic fields.
CYBER LOSS ABSOLUTE EXCLUSION CLAUSE
- Notwithstanding any provision to the contrary within this contract, this contract excludes any Cyber Loss.
- Cyber Loss means any loss, damage, liability, expense, fines or penalties, or any other amount directly or indirectly caused by:
- the use or operation of any Computer System or Computer Network;
- the reduction in or loss of ability to use or operate any Computer System, Computer Network or Data;
- access to, processing, transmission, storage, or use of any Data;
- inability to access, process, transmit, store or use any Data;
- any threat of or any hoax relating to 2.1 to 2.4 above;
- any error or omission or accident in respect of any Computer System, Computer Network, or Data. This includes, but is not limited to, any loss of data.
- Computer System means any computer, hardware, software, application, process, code, program, information technology, communications system, or an electronic device owned or operated by the Insured or any other party. This includes any similar system and any associated input, output, or data storage device or system, networking equipment, or backup facility.
- Computer Network means a group of Computer Systems and other electronic devices or network facilities connected via a form of communications technology, including the internet, intranet, and virtual private networks (VPN), allowing the networked computing devices to exchange data.
- Data means information used, accessed, processed, transmitted, or stored by a Computer System.
INSTITUTE RADIOACTIVE CONTAMINATION, CHEMICAL, BIOLOGICAL, BIOCHEMICAL AND ELECTROMAGNETIC WEAPONS EXCLUSION CLAUSE
This clause shall be paramount and shall override anything contained in this insurance inconsistent therewith.
- In no case shall this insurance cover loss damage liability or expense directly or indirectly caused by or contributed to by or arising from
- ionizing radiations from or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel
- the radioactive, toxic, explosive, or other hazardous or contaminating properties of any nuclear installation, reactor or other nuclear assembly or nuclear component thereof
- any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter
- the radioactive, toxic, explosive, or other hazardous or contaminating properties of any radioactive matter. The exclusion in this sub-clause does not extend to radioactive isotopes, other than nuclear fuel when such isotopes are being prepared, carried, stored, or used for commercial, agricultural, medical, scientific, or other similar peaceful purposes
- any chemical, biological, biochemical, or electromagnetic weapon.
WAR AND TERRORISM EXCLUSION ENDORSEMENT
Notwithstanding any provision to the contrary within this insurance or any endorsement thereto, it is agreed that this insurance excludes loss, damage, cost, or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any of the following regardless of any other cause or event contributing concurrently or in any other sequence to the loss;
(1) war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or
(2) any act of terrorism.
For the purpose of this endorsement, an act of terrorism means 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 similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear.
This endorsement also excludes loss, damage, cost, or expense of whatsoever nature directly or indirectly caused by, resulting from, or in connection with any action taken in controlling, preventing, suppressing, or in any way relating to (1) and/or (2) above.
If the Underwriters allege that by reason of this exclusion, any loss, damage, cost, or expense is not covered by this insurance the burden of proving the contrary shall be upon the Assured.
In the event any portion of this endorsement is found to be invalid or unenforceable, the remainder shall remain in full force and effect.
CANCELLATION – MINIMUM EARNED PREMIUM ENDORSEMENT
In consideration of the premium for which this Insurance is issued, in the event of cancellation of this Insurance by the Assured, a minimum of:
- pro-rata of the Minimum and Deposit Premium; or
- 75% of the Minimum and Deposit Premium; or
- 100% of the Total Audited (Adjusted) Premium
whichever is the greater shall become earned; any Conditions of this Insurance to the contrary notwithstanding.
However, if any losses are notified, the Minimum Earned Premium is to be 100% Earned.
In the event of a cancellation by the Underwriters for non-payment of premium, the Minimum Premium shall be due and payable; provided, however, such non-payment cancellation shall be rescinded if the Assured remits the full premium within 10 days of the date of notice of cancellation.
In the event of any other cancellation by the Underwriters, of which the Assured will be given 90 days’ notice, the Earned Premium shall be computed according to the Total Audited (Adjusted) Premium or pro-rata whichever the greater.
You will not disclose the existence of the coverage afforded by this policy to any third party unless either we have given written consent or you are under a legal or regulatory obligation to do so and have limited disclosure to only that which is required under the obligation. If this condition is not complied with, we shall have no liability under this policy unless you show that non-compliance with this condition could not have increased the risk of the claim or Suit which actually occurred in the circumstances in which it occurred.
COMMUNICABLE DISEASE EXCLUSION
- Notwithstanding any provision to the contrary within this policy, this policy does not cover all actual or alleged loss, liability, damage, compensation, injury, sickness, disease, death, medical payment, defense cost, cost, expense, or any other amount, directly or indirectly and regardless of any other cause contributing concurrently or in any sequence, originating from, caused by, arising out of, contributed to by, resulting from, or otherwise in connection with a Communicable Disease or the fear or threat (whether actual or perceived) of a Communicable Disease.
- For the purposes of this endorsement, loss, liability, damage, compensation, injury, sickness, disease, death, medical payment, defense cost, cost, expense, or any other amount, includes, but is not limited to, any cost to clean-up, detoxify, remove, monitor or test for a Communicable Disease.
- As used herein, a Communicable Disease means any disease which can be transmitted by means of any substance or agent from any organism to another organism where:
- the substance or agent includes, but is not limited to, a virus, bacterium, parasite, or other organism or any variation thereof, whether deemed living or not, and
- the method of transmission, whether direct or indirect, includes but is not limited to, airborne transmission, bodily fluid transmission, transmission from or to any surface or object, solid, liquid or gas or between organisms, and
- the disease, substance, or agent can cause or threaten bodily injury, illness, emotional distress, damage to human health, human welfare, or property damage.
MOTORCYCLE MODEL YEAR EXCLUSION
Notwithstanding any other provision of this Policy, it is hereby agreed that this Policy shall not apply to, and we shall have no liability hereunder to any Insured in respect of any claim arising out of or allegedly arising out an accident involving any Motorcycle with the model year of 2005 or older.
All payments made for the individuals renting the vehicles shall be counted in a diminution of the overall limit of USD 1,000,000 for any one Accident.
The total amount payable under this Policy for anyone Accident shall not exceed USD 1,000,000.