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Section IV – Exclusions

The coverage under this Policy does not apply to any Loss based upon, arising out of, directly or indirectly resulting from, or in any way connected with the following.

A. Antitrust, False Advertising and Unfair Trade Practices

Actual or alleged unfair competition, restraint of trade, unfair or deceptive acts or practices, false, deceptive or misleading advertising, price fixing, price discrimination or predatory pricing, or any violation of the Sherman Antitrust Act, the Clayton Act, the Robinson-Patman Act, the Federal Trade Commission Act or any foreign, federal, state, or local law, statute, rule, or regulation relating to such activities; however, this exclusion will not apply to a Claim for a Cyber Security Incident or Privacy Breach Incident provided no member of the Executive Group participated or colluded in such Cyber Security Incident or Privacy Breach Incident.

B. Biometric Information Privacy

Any actual or alleged failure to comply with the Illinois Biometric Privacy Act (740 ILCS 14/1-14/25) (BIPA), any amendment thereto, or any regulation promulgated thereunder, or any similar foreign, federal, state, or local law, statute, rule, or regulation regarding the rights of individuals with respect to the collection, use, storage, sharing, sale, possession, retention, security, profit from, destruction, and displaying of biometric data, information, identifiers, or likenesses of natural persons, including retinas, irises, fingerprints, vein patterns, voiceprints, hand or face geometry, keystrokes, gaits or other physical patterns, sleep/health/exercise data, or deoxyribonucleic acid (DNA).

C. Bodily Injury

Any actual or alleged physical injury, sickness, disease, or death of any person, including any pain and suffering, mental anguish, or emotional distress, resulting from such physical injury, sickness, disease or death.

D. Collection or Use of Protected Personal Information

Any actual or alleged unlawful collection, use, or retention of Protected Personal Information or other information regarding a natural person by or on behalf of the Insured Organization, including the actual or alleged failure to provide adequate notice that such information is being collected, used, or retained.

E. Digital Media Liability

With respect to part B. Digital Media Liability under SECTION II - 3rd PARTY INSURING AGREEENTS:

  1. a Claim for misappropriation of ideas under implied contract;
  2. the actual or alleged obligation to make licensing fee or royalty payments;
  3. any costs or expenses incurred or to be incurred by the Insured or others for the reprinting, reposting, recall, removal, or disposing of any Digital Media Content or any other information, content, or media, including any media or products containing such Digital Media Content, information, content, or media;
  4. any Claim brought by or on behalf of any intellectual property licensing bodies or organizations;
  5. the actual or alleged false, inaccurate, inadequate, or incomplete description of the price of goods, products or services, cost guarantees, cost representations, contract price estimates, or the failure of any goods or services to conform with any represented quality or performance; or
  6. any Claim made by or on behalf of any independent contractor, joint venture, or venture partner arising out of or resulting from disputes over ownership of rights in Digital Media Content or services provided by such independent contractor, joint venture, or venture partner.

F. Employment Practices

Any:

  1. actual or alleged discrimination or harassment of any kind, whether or not the actual or alleged conduct is committed by an Insured;
  2. employment relationship, or the nature, terms, or conditions of employment, including claims for workplace torts, wrongful termination, dismissal or discharge, whether or not the actual or alleged conduct is committed by an Insured; or
  3. actual or alleged acts, errors or omissions, or breach of a fiduciary duty, responsibility, or obligation, in connection with an employee benefit, pension, healthcare, welfare, profit sharing, mutual or investment plan, fund, or trust, whether or not the actual or alleged conduct is committed by an Insured, including a violation of a fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA) or any similar foreign, federal, state, or local law, statute, rule, or regulation.

However, part 2. of this exclusion will not apply to a Privacy Breach Incident.

G. Fair Credit Reporting Act

Any actual or alleged violation of the Fair Credit Reporting Act (FCRA), the Fair and Accurate Credit Transactions Act (FACTA), the Fair Debt Collection Practices Act, the Truth in Lending Act, any rule or regulation promulgated thereunder, or any similar foreign, federal, state, or local law, statute, rule, or regulation; however, this exclusion will not apply to a Claim arising out of a Privacy Breach Incident provided that no member of the Executive Group participated or colluded in such Privacy Breach Incident.

H. Fraudulent, Criminal, or Intentional Acts

Any actual or alleged fraudulent, malicious, or criminal act, error or omission, or any willful, knowing, or intentional violation of law, rule, statute, or regulation by or at the direction of an Insured; however, this exclusion will not apply to Claim Expenses in defending the Insured against such allegations unless and until there is a final, non-appealable determination in a legal proceeding that such acts or omissions have, in fact, occurred, or an adverse omission of fact establishing such conduct. Fees and costs related to criminal proceedings are not covered under this Policy regardless of the allegations made against any Insured and We shall have no duty to pay any amounts to defend or indemnify any Insured in connection with such proceedings. For purposes of this exclusion, only acts, errors, or omissions of the Executive Group will be imputed to the Insured Organization and any conduct pertaining to any natural person Insured will not be imputed to any other natural person Insured.

I. Governmental Acts

Any:

  1. Claim brought by or on behalf of any foreign, federal, state, or local governmental entity in any jurisdiction in such entity's regulatory or official capacity; however, this part 1. will not apply to part C. Regulatory Liability of SECTION II - 3RD PARTY INSURING AGREEMENTS; or
  2. seizure, confiscation, shutdown, or nationalization of property or data, or restriction of operations, closure, or shutdown of any Computer Systems or any entity operating Computer Systems by order or action of any foreign, federal, state, or local governmental or public authority.

J. Improvements

Costs or expenses incurred by the Insured Organization to:

  1. identify or remediate errors or vulnerabilities of Computer Systems; however, this part 1. will not apply to Breach Investigation Costs to mitigate or contain an ongoing Cyber Security Incident or Privacy Breach Incident;
  2. update or improve privacy or network security controls, policies, or procedures to a level beyond that which existed prior to an Incident; or
  3. update, replace, restore, assemble, reproduce, recollect, or enhance Data or Computer Systems to a level beyond that which existed prior to an Incident;

however, this exclusion will not apply to Bricking Loss or Remediation Costs.

K. Infrastructure Failure

Any failure, outage, disturbance, degradation, impairment, interruption, fluctuation, short-circuit, brownout, blackout, or surge of infrastructure that is provided or supplied by a third party, including:

  1. satellites;
  2. electricity, power, gas, water, telephone, telecommunications, cable, or other utility services;
  3. internet infrastructure, including any Domain Name System (DNS), Certificate Authority, or Internet Service Provider (ISP)

However, this exclusion does not apply to a System Disruption of External Computer Systems.

L. Intellectual Property Infringement

Any actual or alleged infringement, misappropriation, misuse, or abuse of a patent, trade secret, trademark, trade dress, copyright, or any other intellectual property right; however, this exclusion will not apply to any Claim arising out of a Cyber Security Incident or Privacy Breach Incident or an otherwise covered Claim under part B. Digital Media Liability of SECTION II - 3rd PARTY INSURING AGREEMENTS.

M. Insured vs. Insured

Any allegations brought by or on behalf of any:

  1. Insured, or any of its parents, successors, or assignees; or
  2. corporation or other entity in which any Insured has any ownership interest.

However, this exclusion will not apply to any Claims brought by an Additional Insured or any Claim brought by an individual who is not a member of the Executive Group for a Privacy Breach Incident;

N. Market Fluctuations

Any trading losses or trading liabilities (including commissions or fees) resulting from the fluctuation of any stock, share, bond, security or currency on any financial markets or exchanges.

O. Natural Disaster

Any fire, flood, earthquake, volcanic eruption, explosion, lightning, wind, hail, tidal wave, landslide, act of God or other physical event.

P. Nuclear & Pollution

Any:

  1. Pollutants or Nuclear Material of any kind, including the actual, alleged or threatened discharge, dispersal, or release of any Pollutants or Nuclear Material and any contamination resulting therefrom; or
  2. request, demand, or order to test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize, or in any way respond to, or assess the effects of any Pollutants or Nuclear Material.

Q. Organized Crime

Any actual or alleged violation of the Organized Crime Control Act of 1970 (Racketeer Influenced and Corrupt Organizations Act or RICO), as amended, or any rule or regulation promulgated thereunder or any similar foreign, federal, state, or local law, statute, rule or regulation.

R. Prior Proceedings, Knowledge, and Notice

Any:

  1. Claim first made against an Insured prior to, the inception of this Policy;
  2. act, error, Incident, event, or omission committed or occurring prior to the effective date of this Policy, or the effective date of any policy issued by Us of which this Policy is a renewal or replacement, if any member of the Executive Group knew or could have reasonably foreseen that such act, error, Incident, event, or omission might be the basis of a Loss or Claim; or
  3. Incident, Claim, Loss, or circumstance for which notice has been provided under any prior policy of which this Policy is a renewal or replacement.

S. Property Damage

Any actual or alleged damage, destruction, or loss of tangible property, including loss of use; however, electronic data shall not be considered tangible property. This exclusion will not apply to Bricking Loss or Remediation Costs.

T. Retroactive Date

Any Claim arising out of any act, error, omission, event, or Incident first occurring prior to the Retroactive Date.

U. Riot & Civil Commotion

Any riot, strike, insurrection, or civil commotion including any action taken in controlling, preventing, suppressing or in any way relating to such uprising, however this exclusion will not apply to Cyber Terrorism.

V. Securities

Any:

  1. purchase, sale, offer, or solicitation of an offer to purchase or sell stock, shares, bonds, or other securities or currencies; or
  2. actual or alleged violation of a foreign, federal, state, or local securities law, statute, rule, or regulation, including the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisors Act, or state blue sky laws.

W. Terrorism

An Act of Terrorism or any action taken in countering, controlling, preventing, suppressing, minimizing, terminating, or in any way relating to an Act of Terrorism; however, this exclusion will not apply to an act of Cyber Terrorism that results in an Incident.

X. Theft of Funds

Any actual or alleged loss, theft, or improper transfer of funds, monies (including Cryptocurrencies), or securities of an Insured or any third party.

Y. Uninsurable Loss

Any:

  1. Loss that is uninsurable under the law of this Policy or any applicable venue; or

  2. payment or benefit which We are prohibited from making or providing by any applicable foreign, federal, state, or local law, statute, rule, or regulation, or directive, order, or other proclamation having the force of law, or that would expose Us or Our parent company or its ultimate controlling entity to any applicable foreign, federal, state, or local sanctions, prohibitions, or restrictions, or anti-terrorism laws or regulations, including requirements by the United States Office of Foreign Assets Control (OFAC) and United Nations resolutions.

Z. Unsolicited Communications

Any actual or alleged violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), Telephone Consumer Protection Act (TCPA), or any similar foreign, federal, state, or local law, statute, rule, or regulation relating to unsolicited communication, distribution, sending or transmitting of any communication via direct mail, facsimile, telephone or any other electronic or telecommunications device.

AA. Valuable consideration

Any valuable consideration given by an Insured in excess of the total contracted or expected amount, including the value of coupons, credits, price discounts, prizes, and awards.

BB. Wiretapping

Any actual or alleged eavesdropping, wiretapping, tracking, or recording in any manner, including eavesdropping, wiretapping, tracking, or recording using a device, software, pixels, cookies, or tags.