Allianz Professional Indemnity Insurance Travel Agents

Transcription

1 Allianz Global Corporate & Specialty Pacific Allianz Professional Indemnity Insurance Travel Agents Policy Wording

2 Table of Contents GENERAL INFORMATION... 5 POLICY WORDING... 9 INSURING CLAUSES... 9 CIVIL LIABILITY... 9 INQUIRY COSTS... 9 INSURING CLAUSE CLARIFICATIONS... 9 DEFAMATION... 9 BREACH OF PRIVACY... 9 INTELLECTUAL PROPERTY... 9 JOINT VENTURES... 9 LOSS OF DOCUMENTS MISLEADING OR DECEPTIVE CONDUCT VICARIOUS LIABILITY EXTENSIONS ADMINISTRATORS AND EXECUTORS ADVANCEMENT OF DEFENCE COSTS AUTOMATIC COVER FOR NEW SUBSIDIARIES CONTINUOUS COVER COURT ATTENDANCE DOMESTIC PARTNERS EMERGENCY COSTS ADVANCEMENT FRANCHISORS INDEMNITY FRAUD AND DISHONESTY GENERAL INSURANCE DISTRIBUTOR MITIGATION COSTS NON-RENEWAL DISCOVERY PERIODS Page 1

3 PANEL SOLICITORS PUBLIC RELATIONS EXPENSES RUN-OFF AFTER TRANSACTION SEVERABILITY AND NON-IMPUTATION OPTIONAL EXTENSIONS BREACH OF PRIVACY EMPLOYMENT PRACTICES LIABILITY FIDELITY INSURANCE OFFICERS LIABILITY WORKPLACE STATUTORY LIABILITY INSURANCE DEFINITIONS EXCLUSIONS ANTICOMPETITIVE CONDUCT BODILY INJURY/ PROPERTY DAMAGE COMMINGLING OF FUNDS CONDUCT CONTRACTUAL LIABILITY / GUARANTEE OR WARRANTY EMPLOYER S INDEMNITY EMPLOYMENT PRACTICES LIABILITY FAILURE TO MAINTAIN INSURANCE INSOLVENCY INSURED V INSURED OCCUPIER S LIABILITY POLLUTION PRIOR CLAIMS / CIRCUMSTANCES RETROACTIVE DATE TRADING DEBTS USA JURISDICTION CLAIMS Page 2

4 VEHICLES WAR AND TERRORISM FIDELITY EXCLUSIONS COSTS, FEES AND EXPENSES DISCOVERY OUTSIDE THE POLICY PERIOD INDIRECT DIRECT FINANCIAL LOSS PROPRIETARY INFORMATION, TRADE SECRETS AND INTELLECTUAL PROPERTY SEGREGATION OF DUTIES CLAIMS CONDITIONS NOTIFICATIONS MITIGATION COOPERATION DEFENCE AND SETTLEMENT ALLOCATION DISPUTES INSURER S CONSENT RELATED CLAIMS/INQUIRIES GENERAL PROVISIONS ASSIGNMENT CANCELLATION CHANGE OF CONTROL ENTIRE AGREEMENT FOREIGN CURRENCY SETTLEMENTS GST PLURALS, HEADINGS AND TITLES, INTERPRETATION SCOPE AND GOVERNING LAW SUBROGATION TERMINATION OF FIDELITY INSURANCE COVER Page 3

5 LIMIT AND RETENTION LIMIT OF LIABILITY OTHER INSURANCE / INDEMNIFICATION RETENTION POLICY ADMINISTRATION Page 4

6 General Information The General Information set out below is provided for your (the Insured s) information only. It does not form part of the insurance contract with you, and is not part of the policy. Nothing contained in the General Information imposes contractual obligations on you, or creates contractual rights. These are contained in the policy and any endorsement. Your Duty of Disclosure Before You (the Insured) enter into the Policy with Us (the Insurer), the Insurance Contracts Act 1984 requires You to disclose to Us every matter that you know or could reasonably be expected to know is relevant to Our decision whether and on what terms Your application for insurance is acceptable and to calculate how much premium is required for Your insurance. You have the same duty to disclose those matters to Us before You renew, extend, vary or reinstate the Policy. The duty applies until the Policy is entered into, or where relevant, renewed, extended, varied or reinstated (Relevant Time). If anything changes between the time You provide answers or make disclosure and the Relevant Time, You need to tell Us. What You do not need to tell Us You do not need to tell Us about any matter that: diminishes Our risk; is of common knowledge; We know or should know as an insurer; or We tell You We do not need to know. Who does the duty apply to? The duty of disclosure applies to You and everyone that is an insured under the Policy. If You provide information for another insured, it is as if they provided it to Us. What happens if the duty of disclosure is not complied with? If the duty of disclosure is not complied with We may cancel the Policy and/or reduce the amount We pay if You make a claim. If fraud is involved, We may treat the Policy as if it never existed, and pay nothing. Claims Made This policy operates on a claims made and notified basis. This means that the policy covers you (the Insured) for claims made against you and notified to us (the Insurer) during the Period of Insurance. The policy does not provide cover in relation to Prior Claims/Circumstances (as set out in the relevant exclusion) nor in relation to acts, errors, omissions or other conduct which first takes place before the Retroactive Date of the policy (if such a date is specified). : acts, errors omissions committed prior to the retroactive date of the policy (if such a date is specified); claims made after the expiry of the Period of Insurance even though the event giving rise to the claim may have occurred during the Period of Insurance, unless such claim is made during the Discovery Period or under the Extension for Run-off After Transaction; claims notified or arising out of facts or circumstances notified (or which ought Page 5

7 reasonably to have been notified) under any previous policy; claims made, threatened or intimated against you prior to the commencement of the Period of Insurance; facts or circumstances of which you first became aware prior to the Period of Insurance, and which you knew or ought reasonably to have known had the potential to give rise to a claim under this policy; claims arising out of circumstances noted on the proposal form for the current period of insurance or on any previous proposal form. Where you give notice in writing to us of any facts that might give rise to a Claim against you as soon as reasonably practicable after you become aware of those facts but before the expiry of the period of insurance, you may have rights under Section 40(3) of the Insurance Contracts Act 1984 to be indemnified in respect of any Claim subsequently made against you arising from those facts notwithstanding that the Claim is made after the expiry of the period of insurance. Any such rights arise under the legislation only. The terms of the policy and the effect of the policy is that you are not covered for Claims made against you after the expiry of the period of insurance unless such Claim is made during the Discovery Period or under the Extension for Run-off After Transaction. General Insurance Code of Practice We (the Insurer) are a signatory to the General Insurance Code of Practice. The Code aims to raise standards of practice and service in the insurance industry. It: promotes better communication between insurers and customers which will lead to better public understanding of insurance to allow customers to make informed choices, and outlines good standards of practice and service to be met by insurers to enhance their reputation customers needs. for responding efficiently to their Dispute Resolution Process We (the Insurer) will do everything possible to provide a quality service to you (the Insured). However, we recognise that occasionally there may be some aspect of our service or a decision we have made that you wish to query or draw to our attention. We have a Complaints and Dispute Resolution Procedure which undertakes to provide an answer to your complaint within fifteen (15) working days. If you would like to make a complaint or access our internal dispute resolution service please contact our nearest office and ask to speak to a dispute resolution specialist. Contact for assistance or confirmation of cover If you need to confirm any policy transaction or clarify any of the information contained in this policy document or if you have any other queries, please Page 6

8 contact any of our offices or refer to our website at If this insurance has been issued through an insurance intermediary If your policy has been arranged through our agent, or a broker who is acting under an agency arrangement such as a binder with us, then they are acting as our agent and not as your agent. They will tell you when this is the case. If Your Policy has been arranged by a broker, other than a broker acting under such an agency arrangement with us, then the broker is acting as your agent. Where this Policy has been arranged through an intermediary a commission may be payable by us to them for arranging the insurance. Privacy Notice At Allianz, we (the Insurer) give priority to protecting the privacy of your (the Insured s) personal information. We do this by handling personal information in a responsible manner and in accordance with the Privacy Act 1988 (Cth). How We Collect Your Personal Information We usually collect your personal information from you or your agents. We may also collect it from our agents and service providers; other insurers and insurance reference bureaus; people who are involved in a claim or assist us in investigating or processing claims, including third parties claiming under your policy, witnesses and medical practitioners; third parties who may be arranging insurance cover for a group that you are a part of; law enforcement, dispute resolution, statutory and regulatory bodies; marketing lists and industry databases; and publicly available sources. Why We Collect Your Personal Information We collect your personal information to enable us to provide our products and services, including to process and settle claims; offer our products and services and those of our related companies, brokers, intermediaries and business partners that may interest you; and conduct market or customer research to determine those products or services that may suit you. You can choose not to receive product or service offerings from us (including product or service offerings from us on behalf of our brokers, intermediaries and/or our business partners) or our related companies by calling the Allianz Direct Marketing Privacy Service Line on , EST 8am to 6pm Monday to Friday, or going to our website s Privacy section at Who We Disclose Your Personal Information To We may disclose your personal information to others with whom we have business arrangements for the purposes listed in the paragraph above or to enable them to offer their products and services to you. These parties may include insurers, intermediaries, reinsurers, insurance reference bureaus, related companies, our advisers, persons involved in claims, external claims data collectors and verifiers, parties that we have an insurance scheme in place with under which you purchased your policy (such as a financier or motor vehicle manufacturer and/or dealer). Disclosure may also be made to government, law enforcement, dispute resolution, statutory or regulatory bodies, or as required by law. Disclosure Overseas Your personal information may be disclosed to other companies in the Allianz Group, business partners, reinsurers and service providers that may be located in Australia or overseas. The countries this information may be disclosed to will vary from time to time, but may include Canada, Germany, New Page 7

9 Zealand, United Kingdom, United States of America and other countries where the Allianz Group has a presence or engages subcontractors. We regularly review the security of our systems used for sending personal information overseas. Any information disclosed may only be used for the purposes of collection detailed above and system administration. Access to Your Personal Information and Complaints You may ask for access to the personal information we hold about you and seek correction by calling EST 8am 6pm, Monday to Friday. Our Privacy Policy contains details about how you may make a complaint about a breach of the privacy principles contained in the Privacy Act 1988 (Cth) and how we deal with complaints. Our Privacy Policy is available at Telephone Call Recording We may record incoming and/or outgoing telephone calls for training or verification purposes. Where we have recorded a telephone call, we can provide you with a copy at your request, where it is reasonable to do so. Page 8

10 Policy Wording Except as otherwise provided herein, this policy covers only Claims or Inquiries first made against the Insured and reported in the Policy Period, or Discovery Period if applicable. Subject to the payment of, or agreement to pay, the premium to the Insurer, the Insurer will pay Loss and other amounts to or on behalf of the Insured in accordance with and subject to the terms and conditions of this policy. All terms, exclusions and conditions apply to the Insuring Clauses, Insuring Clause Clarifications and Extensions. Insuring Clauses Civil Liability The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability. Inquiry Costs The Insurer shall pay to or on behalf of the Insured all Legal Representation Costs. Cover for Legal Representation Costs shall not exceed AUD$500,000 and shall be part of and not in addition to the Limit of Liability. Insuring Clause Clarifications Defamation The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for defamation, slander, libel or injurious falsehood. Breach of Privacy The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for breach of privacy or duty of confidentiality. Intellectual Property The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for breach of intellectual or industrial property or trade secret whether registered or unregistered, including but not limited to trade marks, designs, patents, copyright and analogous rights. Joint ventures The Insurer will pay to or on behalf of the Policyholder all Loss resulting from any Claim for Civil Liability against any joint venture of which the Policyholder forms part, provided that the Policyholder has declared in the Submission all fees/turnover received from any such joint venture. The liability of the Insurer shall be proportionate to the lowest of: (i) the percentage of the share capital of the joint venture owned by the Policyholder; or (ii) the percentage of the voting control of the joint venture exercised by the Policyholder. Page 9

11 This Clause shall provide cover to the Policyholder only. No other participant in such joint venture and no other third party shall have any rights under this policy, and neither shall the Insurer be liable to pay a contribution to any insurer of any other participant in such joint venture. Loss of Documents The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for the unintentional destruction, damage, misplacement, deletion or loss of Documents while in the physical custody or control of the Insured and for which the Insured is legally responsible. For the purposes of this Insuring Clause Clarification, Documents means any documents including computer records and electronic data other than any negotiable instrument. Misleading or Deceptive Conduct The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for any actual or alleged misleading or deceptive conduct at law or under the Competition and Consumer Act 2010 (Cth), Trade Practices Act 1974 (Cth), Australian Securities and Investments Commission Act 2001(Cth), Corporations Act 2001 (Cth) or any equivalent provisions in the State Fair Trading Acts, or their respective successor legislation Vicarious liability The definition of Claim includes the provision of Professional Services by any other person on behalf of the Policyholder and for which the Policyholder is, or is alleged to be, legally liable. Extensions Administrators and Executors The definition of Insured is extended to include the legal representatives, heirs, assigns or estates of the Policyholder if the Policyholder is a natural person and of an Officer or Employee in the event of their death, incapacity, insolvency or bankruptcy but solely in respect of their personal liability for Loss arising from a Claim for an act, error, omission or other conduct of such Policyholder, Officer or Employee. Advancement of Defence Costs The Insurer shall advance Defence Costs covered by this policy promptly after sufficiently detailed invoices for those costs are received by the Insurer. However, any Defence Costs that are actually paid shall be repayable to the Insurer by the Insured in the event and to the extent that it is determined under the policy that they were not entitled to a payment of Defence Costs. The Conduct Exclusion will not apply until the conduct is established by final adjudication of a judicial or arbitral tribunal or by a written admission by an Insured. Cover under this Extension shall not exceed the Limit of Liability. Automatic Cover for New Subsidiaries For the purposes of this Extension, the definition of Subsidiary is extended to mean any entity that for the first time during the Policy Period, the Policyholder either directly or indirectly: (i) controls the composition of the board of directors; (ii) controls more than half of the voting power; or Page 10

12 (iii) holds more than half of the issued share capital. Subsidiary shall not include any entity that meets the criteria in (i) (iii) above for the first time during the Policy Period where such entity, at the date of its acquisition by the Policyholder: a) has total annual gross fees or turnover which is more than 20% of the Policyholder s annual gross fees or turnover in the 12 months prior to inception of the policy; b) has incurred any loss of the type covered by this policy with a quantum greater than the Retention within the past 5 years of operating as the former business; Should the Policyholder wish for cover to be extended to include entities not automatically covered by the foregoing, then the Policyholder shall give the Insurer sufficient details to permit the Insurer to assess and evaluate the potential increase in exposure. The Insurer shall have the right, but not the obligation, to offer cover for such an entity on such additional terms, conditions, exclusions and additional premium as the Insurer may require. Cover provided by this Extension applies only in respect of acts, errors, omissions or other conduct allegedly committed after the entity meets the criteria in (i) (iii) above. Continuous Cover Cover is provided under this policy for any Claim or Inquiry arising from facts or conduct within the Prior Claims/Circumstances Exclusion (iii), provided always that: (i) the Insured did not first know, nor ought reasonably to have first known, before the Continuity Date of the potential for the Claim or Inquiry to arise from those facts or conduct; and (ii) cover provided under this Extension shall be subject to the Insurer's discretion to apply the terms, conditions, exclusions and limitations of the policy under which the relevant fact or conduct could have been notified or the terms, conditions, exclusions and limitations of this policy, but in no circumstances shall the cover granted by this Extension be wider than the remaining terms and conditions of this policy (including the Limit of Liability and Retention); and (iii) the Insured all agree not to claim under more than one policy issued by the Insurer; and (iv) there has been no fraudulent non-disclosure or misrepresentation by the Insured in respect of the facts or conduct. Court Attendance The Insurer shall pay the Policyholder AUD$500 per person for each day that an Officer or Employee is legally compelled to and does attend court to give evidence in connection with a Claim. The Retention does not apply to this Extension. Domestic Partners The definition of Insured is extended to include any spouse or civil partner of the Policyholder if the Policyholder is a natural person and of an Officer or Employee for Loss arising from a Claim for an act, error, omission or other conduct of such Officer or Employee only and in which the spouse or partner had no involvement and is due solely to the spouse or civil partner s status as such. Page 11

13 Emergency Costs Advancement If the written consent of the Insurer cannot be reasonably obtained before Defence Costs, Legal Representation Costs, and Public Relations Expenses are incurred by an Insured, the Insurer agrees to give retrospective approval for such amounts incurred by the Insured over a period of up to 30 days after incurring the first of such amounts. Cover under this Extension shall not exceed 10% of the Limit of Liability and shall be part of and not in addition to the Limit of Liability. Notwithstanding the above: (i) if it is established that there is no entitlement to indemnity under this policy for the specific amounts advanced under this Extension, the Insured must repay such amounts to the Insurer immediately; (ii) the Insured must give written notice to the Insurer of the Claim or Inquiry which was the subject of the emergency as soon as practicable, together with reasons why an emergency existed. Franchisors Indemnity In the case of the Policyholder operating as a franchisee, any Claim made against the franchisor for acts, errors, omissions or other conduct of the Insured shall be covered as if made against the Policyholder. Fraud and Dishonesty The Insurer shall pay to or on behalf of the Insured all Loss resulting from a Claim for Damages which, but for the Conduct Exclusion, would have been covered under this policy, provided that no cover is provided to any Insured committing or acquiescing in the act or omission that would otherwise have resulted in the Conduct Exclusion applying. General Insurance Distributor The definition of Professional Services is extended to include the distribution of general insurance products (in connection with the provision of Professional Services) by the Insured in a capacity other than as an authorised representative of an Australian financial services licence holder. However, this extension shall not cover Loss or payments in respect of any Claim or Inquiry arising out of, based upon or attributable to: (i) failure by any Insured to give written disclosure of any commission, fees or other benefits received, in connection with the distribution of general insurance products; or (ii) the Insured providing advice in respect of general insurance products. Mitigation costs The Insurer shall indemnify the Policyholder for Claim Prevention Costs and Expenses. Cover for Claim Prevention Costs and Expenses shall not exceed 10% of the Limit of Liability and shall be part of and not in addition to the Limit of Liability. Non-Renewal Discovery Periods If this policy is neither renewed nor replaced with professional indemnity insurance at or after expiry of the Policy Period, the Insured shall be entitled to a Discovery Period of: Page 12

14 (i) 60 days, granted automatically with no additional premium payable; or (ii) 12 months, upon payment of an additional premium of 90% of the annual premium in effect immediately before the expiry of the Policy Period. The Policyholder must make any request for such a Discovery Period in writing, and pay any applicable additional premium, within 30 days after the expiry of the Policy Period. A Discovery Period is not cancellable by the Policyholder and any premium payable for a Discovery Period is non-refundable. No Discovery Period is available if this policy is cancelled or avoided by the Insurer, or there has been a Transaction before the expiry of the Policy Period. For the purposes of this Extension, Discovery Period means the automatic 60 day period, or the optional period of 12 months from the expiry of the Policy Period during which the Insured may notify Claims made in that period in respect of acts, errors, omissions or other conduct committed before expiry of the Policy Period. The automatic 60 day Discovery Period is part of and not in addition to the optional 12 month period if granted. Panel Solicitors Any Insured is entitled during the Policy Period to free advice of one hour from any one firm listed on the Allianz Global Corporate & Speciality Professional Indemnity Panel of Solicitors which relates to a matter which may give rise to coverage under this policy. The Insurer consents to any firm listed on the Allianz Global Corporate & Speciality Professional Indemnity Panel of Solicitors being retained to act for an Insured in respect of any Claim covered under the policy. Public Relations Expenses The Insurer shall pay to or on behalf of the Policyholder all Public Relations Expenses. Cover for Public Relations Expenses shall not exceed AUD$50,000 and shall be part of and not in addition to the Limit of Liability. Run-off after Transaction In the event of a Transaction, then on application by the Policyholder no later than 30 days after the Transaction is completed or becomes effective, the Insurer will extend cover to apply in respect of Claims first made against an Insured within a period of 84 calendar months from the expiry date of the Policy Period but only for Claims that arise from acts, errors, omissions or other conduct occurring prior to the date of such Transaction. This Extension is only available if the Policyholder accepts the additional terms, conditions, exclusions or premium as the Insurer may require. If cover is so extended, the Extension for Automatic Cover for New Subsidiaries, and the Extension for Non-renewal Discovery Periods are deleted from this policy from the effective date of such Transaction. Severability and Non-Imputation If the Insurer is entitled to avoid this policy from inception or from the time of any variation in cover due to fraudulent non-disclosure or misrepresentation by the Insured, the Insurer agrees to waive that right and shall maintain cover for each Insured, subject to all policy terms, to the extent that such Insured was not involved in or aware of any such conduct. The Insured agree that the Insurer is entitled to reduce its liability to nil in accordance with Section 28(3) of the Insurance Contracts Acts (Cth) in respect of those Insured who were involved in or aware of such conduct. Where there is non-disclosure or misrepresentation which is not fraudulent, the Insurer waives its rights, if any, under Section 28(3) of the Insurance Contracts Act (Cth). Page 13

15 In determining whether coverage is available, except in respect of the Prior Claims / Circumstances Exclusion part (iii): (i) no conduct of, facts known to or knowledge or information possessed by any one Officer or Employee is to be imputed to any other Officer or Employee; and (ii) only the conduct of, facts known to and knowledge or information possessed by any past, present or future chief executive officer, chief financial officer, chief operating officer, managing director, chairman, company secretary, chief legal officer, chief risk officer or any person who holds an equivalent position, of the Policyholder or any Subsidiary will be imputed to the Policyholder and the relevant Subsidiary. Optional extensions Breach of Privacy The Insurer will pay the reasonable and necessary expenses ( Response Costs ) incurred by the Insured, with the prior consent of the Insurer, to notify any client, third party or regulator in accordance with the Insured s legal or regulatory duties as a result of any actual, alleged or suspected breach of privacy first discovered and reported during the Period of Insurance, in relation to personal information collected during the provision of Professional Services, regardless of whether a Claim has been made against the Insured. Response Costs shall not include: (i) Public Relations Expenses; (ii) wages, overtime, salaries or fees to Officers or Employees; (iii) cost to comply with any injunctive relief; Notwithstanding the definition of Loss, the Insurer will also pay fines and penalties arising from an actual, alleged or suspected breach of privacy under the Privacy Act 1988 (Cth), amendments thereto or similar legislation for the same purpose that is first discovered and reported during the Period of Insurance. Cover for Response Costs and fines and penalties arising from a breach of privacy shall not exceed AUD$100,000 and shall be part of and not in addition to the Limit of Liability. Employment Practices Liability Notwithstanding the Employer s Indemnity and Employment Practices Liability Exclusion, the Insurer will pay on behalf of any Insured all Loss resulting from any Claim where liability results directly from the employment or prospective employment of any Employee of the Policyholder. Cover under this Extension shall not exceed AUD$50,000 and shall be part of and not in addition to the Limit of Liability. For the purposes of cover under this Extension only: (i) Claim need not arise from the provision of Professional Services; and (ii) The definition of Employee is extended to include a natural person who is a prospective employee (but not a prospective Officer) who is not necessarily engaged under a contract of employment with the Policyholder or any Subsidiary. Page 14

16 Fidelity Insurance Notwithstanding the Conduct Exclusion, the Insurer shall indemnify the Policyholder for Direct Financial Loss in Australia or New Zealand Discovered and notified to the Insurer during the Policy Period resulting directly from any dishonest, fraudulent or malicious acts of any Employee or Officer, whether committed alone or in collusion with others. Cover for Direct Financial Loss under this Extension shall not exceed AUD$50,000 and shall be part of and not in addition to the Limit of Liability. Officers Liability Cover under this policy is extended to include any: (i) Claim made against an Officer of the Policyholder or any Subsidiary; or (ii) Inquiry where an Officer of the Policyholder or any Subsidiary is identified in writing is required to attend or produce documents or answer questions; provided that neither the Policyholder nor the Subsidiary is a public listed company. For the purposes of this Extension, the definition of Insured is amended to include any Officer of the Policyholder or any Subsidiary whilst acting in their capacity as such and the definition of Claim is amended to delete the words 'That arises from the provision of Professional Services by any Insured'. This Extension shall not cover Loss or payments in respect of any Claim or Inquiry: (a) for any physical injury, sickness, disease, death nervous shock, emotional distress, mental anguish or mental injury of any person; or damage to or loss of or destruction of tangible property or loss of use thereof. (b) brought by or on behalf of any Major Shareholder against any Officer. (c) based on, arising out of, related or attributable to the actual or intended private placement or public offering of any debt or equity. For the purposes of this Extension: (i) Major Shareholder means any securities holder who has or had direct or indirect control or ownership of 15% or more of the issued share capital of the Policyholder or any Subsidiary. (ii) The Continuity Date is the date when this Extension was first provided. Cover under this Extension shall not exceed AUD$500,000 and shall be part of and not in addition to the Limit of Liability. Workplace Statutory Liability Insurance Notwithstanding the definition of Loss, the Conduct Exclusion, the Employer s Indemnity Exclusion and the Employment Practices Liability Exclusion, the Insurer will pay on behalf of any Insured all Defence Costs and any fines or penalties in connection with any Claim first brought against an Insured for an act, error, omission or other conduct that gives rise to a notifiable incident under work health and safety legislation in Australia or New Zealand. However, this Extension shall not cover Loss or payments in respect of any Claim or Inquiry arising out of, based upon or attributable to a contravention of Section 31 Work Health and Safety Act 2011 (Cth) or its equivalent in any State or Territory of Australia or any amendment, consolidation or re-enactment thereof or any similar law anywhere in Australia or New Zealand. Page 15

17 Cover under this Extension shall not exceed AUD$250,000 and shall be part of and not in addition to the Limit of Liability. Definitions Civil Liability means a legally enforceable obligation to a third party. Claim means the earliest of any: (i) verbal or written demand for Damages or non-pecuniary relief; (ii) confirmation in writing of an intention to pursue an action for Damages or non-pecuniary relief; (iii) the commencement of civil or criminal proceedings; (iv) any request to suspend or waive any statute of limitation; to or against an Insured that arises from the provision of Professional Services by any Insured. A Claim is first made against an Insured when the demand, confirmation or request is received by the Insured or the proceeding is served on the Insured. Claim Prevention Costs and Expenses means all reasonable payments incurred by the Insured, following the notification of a potential Claim to the Insurer during the Policy Period, which payments the Insurer consents to in writing and which the Insurer determines to be: (i) directly attributable to; and (ii) reasonably incurred in; the prevention of a Claim which, if made, would be covered by this policy. It does not mean or include: (a) an Insured s loss of opportunity, revenue or profits; (b) overheads, staff remuneration or management time of any Insured; (c) Damages, compensation or other payments made, or consideration given, to customers, clients or potential claimants; (d) Any amount once a Claim is made; (e) Any amount incurred before notification to the Insurer of the potential Claim; or (f) any other amounts which fall within the definition of Loss. Continuity Date means the date referred to as such in the Schedule of this policy. Damages means any amount that an Insured shall be legally liable to pay to a third party as monetary compensation in respect of judgments or arbitral awards rendered against such Insured, or settlements entered into by the Insured with the prior written consent of the Insurer. Defence Costs means all reasonable legal fees, costs and expenses, including disbursements for which an Insured is legally liable and which are incurred by an Insured after a Claim is made, with the prior written consent of the Insurer (such consent not to be unreasonably delayed or withheld), in the investigation, defence, adjustment, settlement or appeal of any Claim. Page 16

18 Discovered or Discovery means when an Officer first becomes aware of facts which would cause a reasonable person to believe that a Direct Financial Loss of the kind covered by this policy has been or is likely to be incurred, even though the exact amount or detail of the Direct Financial Loss may not then be known. If the Policyholder is unable to identify an Employee or Officer but proves beyond reasonable doubt that a Direct Financial Loss must have been caused by a dishonest, fraudulent or malicious act of an Employee or Officer for which cover would otherwise be granted by this policy, then the Policyholder shall not be required to specifically identify the Employee or Officer by name. Direct Financial Loss means direct financial loss suffered by the Policyholder, which is covered under the Extension for Fidelity Insurance. Discovery Period means that period in the Non-Renewal Discovery Period Extension, as applicable. Employee means any natural person who is not an Officer and who is, has been or during the Policy Period becomes expressly engaged under a contract of employment with any Policyholder. External Administrator means any external trustee, receiver, receiver and manager, liquidator, administrator, mortgagee in possession or the like or any employees of such person. Inquiry means (i) an investigation, examination or inquiry by any professional body of which the Insured is a member, or external official person or body having legal authority to conduct an investigation, including a Royal Commission, into the Professional Services of the Insured and for which: (a) (b) the notice or process requiring an Insured to attend or to produce documents or answer questions is first served during the Policy Period; or an Insured is identified in writing during the Policy Period by such authorised person or body as a target of the investigation, examination or inquiry; or, (ii) a raid on, or on-site visit to, any Insured which first takes place during the Policy Period by a regulator, government body or any other external official person or body having legal authority to conduct an investigation into the provision of Professional Services by the Insured and which involves the production, review, copying or confiscation of documents or interview of any Insured; or (iii) a public announcement relating to (ii) above made by the authority performing the raid or on-site visit. It is not necessary that a Claim is made against the Insured. However, Inquiry does not include: (a) any of (i), (ii) or (iii) above that relates to an industry event or practice and not specifically to the conduct of any Insured providing Professional Services; or (b) routine regulatory supervision, inspection or compliance reviews. Insured means (i) the Policyholder and any Subsidiary if the Policyholder is incorporated; and (ii) any Officer but only when acting within the scope of their duties in the performance of Professional Services (as distinguished from carrying out duties as an Officer of the Policyholder in relation to the Policyholder s own affairs); or (iii) any Employee but only when acting within the scope of their duties in the performance of Professional Services. Page 17

19 Insured does not mean or include any contractor or any External Administrator or external auditor of the Policyholder. Insurer means Allianz Australia Insurance Limited, AFS Licence No Legal Representation Costs means the reasonable legal costs and expenses for which an Insured is legally liable and which are incurred by that Insured, with the prior consent of the Insurer, not to be unreasonably withheld, for legal representation in connection with, preparation for, attendance at or compliance with an Inquiry into the conduct or alleged conduct of any Insured in providing or failing to provide Professional Services. Limit of Liability means the amount specified as such in the Schedule. Loss means the total amount the Insured is legally obligated to pay and shall include: (i) Damages and awards of claimants costs; (ii) Defence Costs; (iii) Direct Financial Loss; (iv) Legal Representation Costs; (v) Public Relations Expenses; (vi) Claim Prevention Costs and Expenses. Loss shall also include Response Costs, but only as defined and provided under the Breach of Privacy Extension. Loss does not include any: (i) taxes; (ii) non-compensatory damages, including aggravated, punitive, multiple, exemplary or liquidated damages (other than damages for defamation, slander, libel or injurious falsehood); (iii) fines or penalties (except to the extent that cover is provided under the Extensions for Breach of Privacy and Workplace Statutory Liability Insurance); (iv) the costs and expenses of complying with any order for, grant of or agreement to provide injunctive or other non-monetary relief; (v) benefits or overheads of, or charges or expenses incurred by any Insured including but not limited to the cost of any Insured s time; (vi) fees or commissions for any Professional Services rendered or required to be rendered by the Insured or that portion of any settlement or award in an amount equal to such fees, charges, costs, commissions, or other remuneration, compensation or payment charges; (vii) matters or amounts which, upon allocation according to Claims Conditon for Allocation, are not covered under this policy; (viii) any amount which may be deemed uninsurable or where coverage is not legally permitted under the law governing this policy or the jurisdiction in which a Claim is brought or the jurisdiction in which the Insured is located; or (ix) any benefit to the extent that the provision of insurance coverage and/or the provision of such benefit would expose the Insurer to any breach of applicable sanctions laws. Page 18

20 Officer means any past, present or future: (i) partner, principal, director or secretary of the Policyholder or a Subsidiary; or (ii) person: (a) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the Policyholder or a Subsidiary; or (b) who has the capacity to affect significantly the Policyholder s or a Subsidiary's financial standing; or (c) in accordance with whose instructions or wishes the directors of the Policyholder or a Subsidiary are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person s professional capacity or their business relationship with the directors or the Policyholder or a Subsidiary ). but only for acts, errors, omissions or other conduct committed, or Inquiries involving conduct committed, while acting in such capacity. Policy Period means the period of time specified as such in the Schedule. Professional Services means acting in the capacity of a travel agent or a tour operator. Pollutants means any substance, solid, liquid, gaseous, biological, radiological or thermal irritant, toxic or hazardous substance, or contaminant, including but not limited to, asbestos, asbestos products, mycota or by-products, lead, or lead containing products, smoke, vapours, dust, fibres, mould, spores, fungi, germs, soot, fumes, acids, alkalis, chemicals, air emissions, odour, waste water, oil, oil products, medical waste and waste materials. Waste materials include but are not limited to recycled, reconditioned or reclaimed materials including nuclear materials. Premium means the amount specified as such in the Schedule. Professional Services means the provision of travel agency or tour operation services that are provided to a third party by the Policyholder for a fee or other remuneration. Public Relations Expenses means all reasonable payments incurred by the Insured with the prior written consent of the Insurer (such consent not to be unreasonably delayed or withheld) for public relations, crisis management or legal services reasonably required to prevent or minimise adverse or negative publicity associated with a Claim first made, or Inquiry, during the Policy Period. It does not mean or include: (i) Response Costs as defined under the Extension for Breach of Privacy; (ii) overheads, staff remuneration or management time of any Insured; (iii) compensation or other payments made to customers, clients or potential claimants; (iv) fines or penalties; or (v) the costs and expenses of complying with any order for, grant of or agreement to provide injunctive or other non-monetary relief. Related Claim and/or Inquiry means any Claims or Inquiries arising out of, based upon or attributable to: (i) the same facts; (ii) the same alleged facts; (iii) the same circumstances; Page 19

21 (iv) the same act, error, omission or other conduct; or (v) any continuous or related acts, errors, omissions or other conduct. Related Direct Financial Loss means (i) all Direct Financial Loss attributable to any single act, omission or event or to a series of related or continuous acts, omissions or events. Acts or omissions of one natural personal alone or in collusion with others shall always be deemed to be related or continuous; or (ii) if no natural person is identifiable, each and every Direct Financial Loss or series of related Direct Financial Losses attributable to the same event or series of related events. Retention means the amount specified as such in the Schedule. The Retention applies to all Loss. Submission means each and every signed proposal form, the statements, and representations therein, its attachments and all other material information submitted to the Insurer in respect of this policy. Subsidiary means any entity at the commencement of the Policy Period that the Policyholder either directly or indirectly: (i) controls the composition of the board of directors; (ii) controls more than half of the voting power; or (iii) holds more than half of the issued share capital. For any Subsidiary, cover under this policy shall only apply to Claims for acts, errors, omissions or other conduct committed, or Inquiries involving conduct committed, while such entity is a Subsidiary of the Policyholder. 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 organisation(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. Transaction means (i) the Policyholder merges with or consolidates into any other entity; or (ii) the Policyholder sells a majority of its assets to any person or entity or persons or entities acting in concert; or (iii) any person or entity or persons or entities acting in concert acquire, directly or indirectly, more than 50% of the issued share capital of the Policyholder; (iv) any person or entity or persons or entities acting in concert acquire control of the appointment of the majority of the Policyholder's directors; or (v) an External Administrator is appointed to the Policyholder. Page 20

22 Exclusions This policy shall not cover Loss or payments: Anticompetitive conduct In respect of any Claim or Inquiry arising out of, based upon or attributable to any actual or alleged restrictive trade practices, restraint of trade or unfair competition. Bodily Injury/ Property Damage In respect of any Claim or Inquiry arising out of, based upon or attributable to: (i) physical injury, sickness, disease or death of a natural person; nervous shock, emotional distress, mental anguish or mental injury except to the extent that the Loss arises from the provision of Professional Services by any Insured or is covered under the Defamation Extension; or the Employment Practice Liability Extension; or the Workplace Statutory Liability Insurance Extension; or (ii) damage to or loss of or destruction of tangible property or loss of use thereof except to the extent that the Loss arises from the provision of Professional Services by any Insured or is covered under the Loss of Documents Extension. Commingling of funds In respect of any Claim or Inquiry arising out of, based upon or attributable to any actual or alleged commingling of funds by the Insured or any inability or failure of the Insured to pay, collect, safeguard or account for client funds. Conduct In respect of any Claim or Inquiry arising out of, based upon or attributable to: (i) the gaining of or intentional attempt to gain profit, remuneration or advantage to which the Insured was not legally entitled; or (ii) a dishonest, fraudulent, malicious, wilful or criminal act or omission; in the event that any of the above is established by final adjudication of a judicial or arbitral tribunal or by a written admission by an Insured. In applying this Exclusion to an Officer or Employee, no conduct of, facts known to or knowledge or information possessed by any one Officer or Employee is to be imputed to any other Officer or Employee. In applying this Exclusion to the Policyholder or any Subsidiary, only the conduct of, facts known to and knowledge or information possessed by any past, present or future chief executive officer, chief financial officer, chief operating officer, managing director, chairman, company secretary, chief legal officer, chief risk officer or any person who holds an equivalent position, of the Policyholder or any Subsidiary will be imputed to the Policyholder and the relevant Subsidiary. Contractual Liability / Guarantee or Warranty In respect of any Claim or Inquiry arising out of, based upon or attributable to: (i) any liability under any contract or agreement; or (ii) any express or implied guarantee or warranty; Page 21

23 except to the extent such liability would have attached to the Insured in the absence of such contract or agreement. Employer s indemnity In respect of any Claim or Inquiry arising out of, based upon or attributable to any physical injury, sickness, disease, death, nervous shock, emotional distress, mental anguish or mental injury of any person under a contract of service or apprenticeship with the Policyholder or any Subsidiary, or arising out of, based upon or attributable to any breach of any obligation owed by the Policyholder or any Subsidiary as an employer, except to the extent that cover is provided under the Employment Practices Liability and the Workplace Statutory Liability Insurance Extensions. Employment practices liability In respect of any Claim or Inquiry arising out of, based upon or attributable to any employment or prospective employment of any past, present, future or prospective employee of the Policyholder or any Subsidiary, except to the extent that cover is provided under the Employment Practices Liability Extension. Failure to maintain insurance In respect of any Claim or Inquiry arising out of, based upon or attributable to any actual or alleged failure to effect or maintain any insurance or bond. Insolvency In respect of any Claim or Inquiry arising out of, based upon or attributable to the insolvency, liquidation, administration or receivership: (i) of an Insured; or (ii) any supplier or service provider, directly or indirectly, of or to the Insured or the Insured s clients. Insured v Insured arising out of, based upon or attributable to any Claim made by or on behalf of: (i) any Insured or any parent, successor or assign of any Insured, or any entity in which an Insured or the management of the Policyholder has an executive or controlling interest, or such entity s successor or assign; or; (ii) any Officer or Employee unless such Claim is made by or on behalf of an Officer or Employee as a customer or client of the Policyholder, or the Claim falls under the Employment Practices Liability Extension. Occupier s liability In respect of any Claim or Inquiry arising out of, based upon or attributable to the ownership, control or occupation of real property by or on behalf of the Policyholder. Pollution In respect of any Claim or Inquiry arising out of, based upon or attributable to any direction, request or effort to: (i) test for, monitor, clean up, remove, contain, treat, detoxify or neutralise Pollutants, or Page 22

24 (ii) respond to or assess the effects of Pollutants. This Exclusion shall not apply to sudden and accidental release of Pollutants as a result of an act, error, omission or other conduct by an Insured. Prior Claims / Circumstances In respect of any Claim or Inquiry based on, arising out of, related or attributable to any: (i) disclosure to the Insurer in the Submission, of any claim, inquiry, investigation, conduct, fact or matter regardless of how it is expressed; or (ii) facts or conduct which have or has been notified under any earlier policy; or (iii) facts or conduct which any Insured knew, or ought reasonably to have known, prior to the commencement of this policy might give rise to a Claim or Inquiry; or (iv) proceeding, inquiry or similar process on foot at the commencement of this policy, or any proceeding, inquiry or similar process derived from essentially the same facts as in such proceeding, inquiry or process. Retroactive date In respect of any Claim or Inquiry arising out of, based upon or attributable to any act, error or omission or other conduct which first takes place before the Retroactive Date (if any) in the Schedule. Trading debts In respect of any Claim or Inquiry arising out of, based upon or attributable to any trading debt incurred, or any guarantee in respect of such a debt given, by an Insured. USA Jurisdiction Claims In respect of any Claim or Inquiry made or pending within or to enforce a judgement obtained in the United States of America or any of its territories or possessions. Vehicles In respect of any Claim or Inquiry arising out of, based upon or attributable to the ownership, maintenance, operation, possession, use, loading or unloading by or on behalf of the Insured of any watercraft, aircraft, motor vehicle or trailer. War and Terrorism In respect of any Claim or Inquiry arising out of, based upon or attributable to any war (declared or otherwise), Terrorism, warlike, military, terrorist or guerrilla activity, sabotage, force of arms, hostilities (declared or undeclared), rebellion, revolution, civil disorder, insurrection, usurped power, confiscation, nationalisation or destruction of or damage to property by or under the order of, any governmental, public or local authority or any other political or terrorist organisation. Page 23

25 Fidelity Exclusions The following exclusions apply in relation to Fidelity Insurance Extension only. This Extension shall not cover directly or indirectly: Costs, Fees and Expenses all costs, fees and expenses incurred by the Policyholder in connection with the determination of the existence or amount of Direct Financial Loss covered by this policy. Discovery Outside the Policy Period Direct Financial Loss: (i) first Discovered prior to the Inception Date of the Policy Period; (ii) first Discovered subsequent to the Expiry Date of the Policy Period; or (iii) sustained prior to the Retroactive Date. Indirect Direct Financial Loss Direct Financial Loss which is indirect or consequential. Proprietary Information, Trade Secrets and Intellectual Property Direct Financial Loss arising directly or indirectly from the accessing of, any confidential information (including but not limited to trade secrets, customer information, patents, trademarks, trade names or copyrights), except to the extent that any such confidential information is used to support or facilitate the commission of an act for which cover would otherwise be granted by this policy. Segregation of Duties Direct Financial Loss from any: (i) dishonest, fraudulent or malicious acts committed by an Employee or Officer who prepares cheque requisitions and also has cheque signing authority; (ii) cheques that are not countersigned; (iii) transfers of funds not authorised by two or more Officers and/or Employees; or (iv) any dishonest, fraudulent or malicious acts committed by an Officer or Employee who is responsible for reconciliation of accounts and/or record keeping and who also authorises payments to a third party or handles bank deposits. Page 24

26 Claims Conditions Notifications The Policyholder shall give written notice to the Insurer of any Claim first made against an Insured or Inquiry during the Policy Period or Direct Financial Loss Discovered as soon as reasonably practicable following first awareness of such Claim, Inquiry or Direct Financial Loss by an Insured. All notifications must be in writing to: ALLIANZ CLAIMS Claims Manager - Financial Lines Allianz Global Corporate & Specialty - Pacific Allianz Australia Insurance Limited Forecourt Building, 2 Market Street Sydney NSW 2000 Australia Tel: [email protected] If posted, the date of posting shall constitute the date that notice was given, and proof of posting shall be sufficient proof of notice. Notice of any Claim or Inquiry must include full particulars, including but not limited to (i) full details of such Claim or Inquiry (ii) the parties involved and (iii) a copy of any document commencing proceedings, or any written notice of any Inquiry. The Insurer must be advised, within a reasonable time of any notification, of any other insurance policy which may apply to any Loss covered under this policy. Mitigation The Insured shall use due diligence and do and concur in doing all things reasonably practicable to avoid or diminish any Loss under this policy. Cooperation The Insured shall at their own cost: (i) render all reasonable assistance to the Insurer and co-operate in the defence of any Claim and/or Inquiry and the assertion of indemnification and contribution rights; and (ii) give such information and assistance to the Insurer as the Insurer may reasonably require to enable it to investigate any Loss or determine the Insurer s liability under this policy. Page 25

27 Defence and Settlement The Insurer does not assume any duty to defend, and the Insured shall defend and contest any Claim made against them unless the Insurer, in its sole and absolute discretion, elects in writing to take over and conduct the defence and settlement of any Claim. If the Insurer does not so elect, it shall be entitled, but not required, to participate fully in such defence and the negotiation of any settlement. If there is any dispute between the Insurer and an Insured about whether to agree to a proposed settlement or about whether a Claim should continue to be defended (taking into account whether the Claim is likely on the balance of probabilities to be successfully defended and such possibilities as may exist for settling the Claim), the dispute shall be dealt with in accordance with the Disputes Condition. If an Insured refuses to consent to any settlement recommendation by the Insurer (or Counsel under the Disputes Condition) and elects to contest the Claim, then the Insurer s liability for the Claim shall not exceed the amount for which the Claim could have been settled, including Defence Costs and any other amounts payable under any applicable Extension up to the date of the Insured s refusal to consent. Allocation In the event that any Claim or Inquiry involves both covered persons and matters, and matters or persons not covered under this policy, a fair and proper allocation of any Defence Costs, Legal Representation Costs, Damages, judgments and/or settlements shall be made between each Insured and the Insurer taking into account the relative legal and financial exposures attributable to matters and persons covered and not covered under this policy. If the parties are unable to agree on a fair and proper allocation, then such allocation is to be determined under the Disputes Condition. Disputes Where, following receipt by the Insurer of all information reasonably required by it to make such decision: (i) a final decision has been given by the Insurer regarding any aspect of this policy, any matter relating to cover hereunder or the handling of any Claim or Inquiry; (ii) that decision is disputed between the Insurer and an Insured; and (iii) such dispute cannot be resolved within 14 days of the date on which such decision is communicated to the Insured, then the dispute shall be referred to a Queen s or Senior Counsel (to be mutually agreed upon by the parties, or in the absence of agreement, to be appointed by the President of the Bar Association, or equivalent organisation, in the relevant jurisdiction), as an expert, to decide the issue. That decision shall be binding upon the Insurer and the Insured. The costs of the dispute shall be borne by the Insurer. Insurer s Consent No Insured shall admit or assume any liability, enter into any settlement agreement or consent to any judgment in relation to any Claim or Inquiry without the prior written consent of the Insurer, other than where provided for under the terms of Emergency Costs Advancement Extension. Related Claims/Inquiries All Related Claims and/or Inquiries shall be deemed to be one single Claim or Inquiry and deemed to be made at the date of the first Claim or Inquiry of the series or at the date of the first notification, whichever is first. Page 26

28 If during the Policy Period, a Claim or Inquiry is made and notified, then any Related Claim and/or Inquiry made after expiry of the Policy Period shall be accepted by the Insurer as having been: (i) made at the same time as the notified Claim or Inquiry was made; and (ii) notified at the same time as the notified Claim or Inquiry was first notified to the Insurer. General Provisions Assignment This policy and any rights under or in respect of it cannot be assigned by the Policyholder or any Insured without the prior written consent of the Insurer. Cancellation This policy may be cancelled: (i) by the Insurer for non-payment of premium; or (ii) except where expressly stated otherwise in this policy, by the Policyholder with effect immediately upon the Insurer s receipt of written notice of such cancellation. In such a situation, the Insurer shall retain: a) where there has been no notification to the Insurer, the short rate proportion (unexpired portion of Premium less handling charges) of the premium stated in the Schedule or varied by endorsement; or b) where there has been a notification to the Insurer, the entire premium stated in the Schedule or varied by endorsement (and if a notification is made to the Insurer after the Insurer has made any payment pursuant to (a) then the Policyholder must repay that amount to the Insurer); (iii) by mutual agreement between the Insurer and the Policyholder. Change of Control The Insurer shall not be liable to make any payment or to provide any services in connection with any Claim or Inquiry arising out of, based upon or attributable to an act, error or omission or other conduct committed after the occurrence of a Transaction, except to the extent that there is cover under the Run Off After Transaction Extension. Entire Agreement The Insured and the Insurer agree that this policy (including the Submission and any materials submitted therewith) and any written endorsements attached hereto constitute the sole and entire agreement between the parties with respect to this insurance. Any prior agreement between the parties is no longer valid. Page 27

29 Foreign Currency Settlements All monetary amounts under this policy are expressed and payable in Australian currency. If judgement is rendered, settlement is denominated or other element of Loss or other amount under this policy is stated in a currency other than Australian dollars, payment under this policy shall be made in Australian dollars at the cash rate of exchange for the purchase of Australian dollars determined by the free market rate of exchange as published in the currency conversion website or if no longer current, a currency conversion website selected by the Insurer on the date the final judgement is reached or the amount of the settlement is agreed upon. GST If the Insured register, or is or are registered, for GST the Insured are required to tell the Insurer of any entitlement to an input tax credit for the premium on this policy at or before the time a claim for indemnity is made under this policy. If the Insured fail to disclose or understate such entitlement, the Insured may be liable for GST on any amount the Insurer may pay. This policy does not cover the Insured for this GST liability or for any fine, penalty or charge that the Insured may be liable for due to a failure to disclose a misstatement made in relation to any entitlement to an input tax credit for the premium. Plurals, Headings and Titles, Interpretation Words and expressions in the singular shall include the plural, and vice versa. Also, where a term of this policy is not specifically defined, it is agreed that the definition normally attributed to it by any applicable law or business practice shall apply. In this policy italicised and bolded words have special meaning and are defined. This policy, its Schedule and any endorsements are one contract in which, unless the context otherwise requires: (i) headings are descriptive only, not an aid to construction; (ii) singular includes the plural, and vice versa; (iii) the male includes the female and neuter; (iv) all references to Extensions include Optional Extensions; (v) all references to specific legislation include amendments to and re-enactments of such legislation; and (vi) references to positions, offices or titles shall include their equivalents in any jurisdiction in which a covered Claim is made or covered Inquiry conducted. Scope and Governing Law Coverage under this policy is provided anywhere in the world, where legally permitted, subject to the Definition of Loss and the USA Jurisdiction Claims Exclusion. Any issue relating to the construction, validity or operation of this policy shall be determined in accordance with the laws of the Commonwealth of Australia and the Australian State or Territory in which the policy is issued. Except as otherwise provided herein, the parties submit to the exclusive jurisdiction of the Australian courts. Page 28

30 Subrogation In the event of any payment under this policy, the Insurer shall be subrogated to all of the rights of recovery of the Insured in respect of such payment. In addition, the Insured shall execute all and any documentation and do any other things, at their own cost, as may be necessary to enable the Insurer to bring an action or suit for such recovery. Any recovery received shall first be applied against the costs of the recovery proceeding, then any payment made by the Insurer and then to any balance remaining thereafter being remitted to the Insured up to the amount of any uninsured loss. The Insured shall not do anything which shall prejudice the Insurer's rights under this Clause. The Insurer agrees not to exercise any such rights of recovery against any Officer or Employee unless it is established that Conduct Exclusion applies to the Claim and the Officer or Employee. In its sole discretion, the Insurer may, in writing, waive any of its rights set forth in this Clause. Termination of Fidelity Insurance Cover Cover under the Fidelity Extension shall cease in respect of all Direct Financial Loss on Discovery and the Insurer shall have no liability to indemnify the Policyholder for any Direct Financial Loss resulting from any acts committed subsequent to the date of Discovery. Limit and Retention Limit of Liability (i) The total aggregate amount of Loss and all other amounts (excluding Defence Costs) payable by the Insurer under this policy shall not exceed the aggregate Limit of Liability. (ii) Defence costs are payable in addition to the Limit of Liability, but only up to an amount equal to the Limit of Liability. In the event that the amount paid by or on behalf of any Insured to dispose of a Claim exceeds the policy s Limit of Liability for any one Claim, then this policy shall only cover the same proportion of Defence Costs as this policy s Limit of Liability for any one Claim bears to the total amount paid to dispose of the Claim (exclusive of Defence Costs) or the equivalent of the Limit of Liability for any one Claim, whichever is the lesser. (iii) Sub-limits of liability are in the aggregate and are part of and not payable in addition to the Limit of Liability. (iv) If the Insurer has paid or agreed to pay the Limit of Liability for any one Claim, then the Insurer will only be liable to pay any amount remaining in the aggregate Limit of Liability for any other Claim or Claims once all other insurance in excess of this policy has been exhausted. (v) Where a Claim is made against more than one Insured under this policy, this shall not operate to increase the total amount payable by the Insurer under this policy. (vi) Any Loss and other amounts paid by the Insurer under this policy shall erode the aggregate Limit of Liability available for all other Loss for that and any other Insured. In no circumstances shall the liability of the Insurer (with the exception of Defence Costs) exceed the aggregate Limit of Liability. Page 29

31 Other Insurance / Indemnification To the extent permitted by the Insurance Contracts Act (Cth) 1984, this policy will only cover Loss to the extent that the amount of such Loss is in excess of any indemnity or cover available to the Insured in respect of that Loss under: (i) any other policy entered into by an Insured or under which the Insured is a beneficiary. (ii) any policy declared in the Submission. The preceding paragraph does not apply to such other insurance that is written only as specific excess insurance over the Limit of Liability provided in this policy. If such other insurance in this Clause is provided by the Insurer, or any other member company, associate or affiliate of Allianz SE, and it covers a Loss or other amounts covered by this policy, the Limit of Liability under this policy in respect of that Loss or other amounts shall be reduced by any amount paid by the Insurer (or member company, associate or affiliate of Allianz SE) under such other insurance in respect of the same Loss or amount. Retention Except for court attendance cover pursuant to the Court Attendance Extension, the Insurer shall be liable only for Loss and other amounts payable under the policy which exceed the Retention. The Retention is to be borne by the Policyholder and is to remain uninsured. It applies to all Loss and Direct Financial Loss. The Retention is not part of the Limit of Liability. A single Retention shall apply to each Claim, Inquiry or Direct Financial Loss, or to any Related Claim and/or Inquiry or Related Direct Financial Loss. Policy Administration The Policyholder shall act on behalf of itself and each and every Insured with respect to: (i) negotiating the terms and conditions of and binding cover; (ii) the exercise of all rights under this policy of any Insured; (iii) all notices (including but not limited to notices relating to the cancellation provisions in this policy); (iv) premiums; (v) endorsements and amendments to this policy; and (vi) dispute resolution. Page 30

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34 Allianz Australia Insurance Limited (ABN AFSL ) 2 Market Street Sydney NSW Australia Phone: Fax: Disclaimer & Copyright Copyright 2014 Allianz Australia Ltd. All rights reserved. The material contained in this publication is designed to provide general information only. Whilst every effort has been made to ensure that the information provided is accurate, this information is provided without any representation or warranty of any kind about its accuracy and Allianz Australia Limited cannot be held responsible for any mistakes or omissions.