Professional Indemnity policy wording

Transcription

1 This insurance is underwritten by AXA Insurance UK plc who are authorised and registered by the Financial Conduct Authority. Custodian is a trading name of Custodian Management Ltd. Custodian Management Ltd is an Appointed Representative of Advent Solutions Management Ltd which is authorised and regulated by the Financial Conduct Authority. Custodian is a registered Trade Mark. V2 (page 1 of 16)

2 Please read this policy carefully to make sure that it meets your needs. You must give us immediate notice of any changes that may affect the insurance given by this policy. Alterations in cover required after this policy has been issued will be confirmed by a separate Endorsement and/or revised schedule and/or revised statement of fact. You should safely store these documents with your original policy. Our promise to you Our goal is to provide you with excellent customer service but sometimes things can go wrong. We take all complaints seriously and will aim to resolve them as quickly as possible. If this policy does not meet with your needs please return all your documents issued within 14 (fourteen) days of receipt and if no claim(s) have been notified, paid or outstanding we will return your premium in full minus an administration fee of 15. Should you wish to cancel your policy at any point after 14 (fourteen) days then you may do so in accordance with the Cancellation provisions set out in the CONDITIONS (Section C ). How to contact Custodian You can contact us by post, or telephone as follows: Custodian Management Ltd Cornhill London EC3V 3QQ Tel: info@custodianinsurance.co.uk If you need to make a claim or report any incident which might result in a claim under this policy you must contact your insurance broker (if you have one) or Custodian immediately on: Tel: claims@custodianinsurance.co.uk Full details of the claims procedures and conditions of this policy are contained in the CONDITIONS section of this policy. Your Contract of Insurance This insurance is based on the information provided by you to us. You agree that this information plus any statement of fact are incorporated in and form the basis for this insurance. In consideration of the payment of the premium we will indemnify you against the events set out in this policy which occur during the policy period in connection with your business activities and any subsequent period for which you pay and we accept a premium. V2 (page 2 of 16)

3 SECTION A - COVER 1. Insuring Clause - Civil Liability We will indemnify you for any civil liability which results in a claim against you arising from your business activities within the Territorial Limits stated in the schedule and notified to us during the policy period. This includes the following: a) breach of your Professional Duties b) unintentional infringement of intellectual property rights c) unintentional breach of confidentiality d) libel or slander e) a dishonest or fraudulent act or omission by any employee, partner or director In defending a claim against you we will also pay costs up to an amount equal to the limit of indemnity unless otherwise stated in the schedule. 2. Loss of Documents We will indemnify you for reasonable expenses you may incur for the policy period in repairing, restoring or replacing documents owned by your clients and in your care, custody or control which in the conduct of your business activities are discovered to be damaged during the policy period and which cannot be found after diligent search. This indemnity includes where the damage of documents is due to the inadvertent transmission or receipt of any virus. Our maximum liability under this extension is 250, Mitigation of Loss We will indemnify you for any reasonable costs you incur with our prior written consent for any action taken to avoid a larger claim under this policy. 4. Ombudsman Awards We will indemnify you for any sum payable as a compensation award up to but not exceeding the limit of indemnity in respect of a final and binding award or determination of any relevant and recognised Ombudsman notified to us during the policy period provided always that such compensation award arises out of the provision of your business activities. V2 - SECTION A (page 3 of 16)

4 5. Statutory Obligations With our prior written consent we will pay up to the amount specified in the schedule under Statutory Obligations for costs you incur to defend any proceeding first made against you and notified to us during the policy period where, in our opinion, defending the proceeding could protect you against a claim under this policy. 6. Representation Costs Subject to our prior approval we will pay any costs incurred to enable your representation at any enquiry or other type of proceeding when the outcome of that enquiry or proceeding may, in our sole opinion be relevant to a claim which may be covered by this policy. 7. Data Protection Act Costs We will indemnify you for the costs of defending any action brought against you or any employee for actual or alleged offences under sections 21(1), 21(2), 22(6) and 47(1) of the Data Protection Act 1988 (and any subsequent or amending legislation) which arise out of the conduct of your business activities. Our liability in respect of such costs shall not exceed 250,000 in respect of any one claim and in the aggregate during the policy period. 8. Prosecution Defence We will indemnify you for costs incurred with our prior written consent in the defence of any criminal proceedings against you during the policy period arising directly from any alleged breach of statutory duty or regulations provided that: a) such alleged breach arose in the course of your business activities b) the defence of such proceedings in our reasonable opinion would assist in the defence of any claim against you arising from such circumstances c) in our reasonable opinion we consider the defence of criminal proceedings has a reasonable chance of success d) we reserve the right to withdraw our consent in the event of a change in circumstances relevant to the criminal proceeding For the purpose of this extension proceedings shall include an appeal against the outcome of any initial proceedings. Our maximum liability under this extension is the limit of indemnity or 500,000, whichever is the lesser. V2 - SECTION A (page 4 of 16)

5 9. Compensation for Court Attendance We will pay you for the cost of attending court by any principal, partner, director or employee engaged or employed by you when requested by us at the following agreed rates: a) 500 per day for your attendance b) 250 per day for an employee s attendance 10. Joint Agency appointments We will indemnify you for any liability arising out of any joint agency agreements you enter into with other property agents provided that such liability arises out of the conduct of your business activities and rights of subrogation against all parties are maintained. 11. Privacy Costs We will indemnify you for reasonable administrative and directly related advertising expenses which you incur to inform your customers of a breach of information security under the Data Protection Act 1988 and any subsequent or amending legislation which results in a compromise or potential compromise of information held by you in respect of your customers which is maintained or resides on a computer system operated by you. Provided that you become aware of such breach of information security and notify us during the policy period. Our maximum liability under this extension is the amount specified in the schedule under Privacy Costs. 12. Virus Costs We will indemnify you for the reasonable costs of repairing damage caused by your inadvertent transmission of any virus to a computer system belonging to one of your customers, clients or trading partners unless the virus was created by you. Our maximum liability under this extension is the amount specified in the schedule under Virus Costs. 13. Pursuit Costs Subject to our prior written approval we will pay the legal costs to enable you to pursue an action for infringement of your intellectual property. Our consent will only be provided upon receipt of an opinion confirming your reasonable prospects of success from a barrister or solicitor specialising in intellectual property law. Our maximum liability under this extension is the amount specified in the schedule under Pursuit Costs. V2 - SECTION A (page 5 of 16)

6 SECTION B - EXCLUSIONS We shall not indemnify or make any payment under this policy for any claim directly or indirectly arising from or involving: 1. Prior Claims Any claim or circumstance which was known to you (or which you should reasonably have known) prior to the inception of this policy. 2. Bodily Injury Bodily injury of any person unless caused directly by any negligent, advice, design or specification by you, an employee or any person, firm or company directly appointed by you acting on your behalf under a formal contract. 3. Associate(s) Any claim brought by you or on your behalf, or any parent or subsidiary company, or any person having a financial, executive or controlling interest in you, or any entity controlled or managed by you. This does not apply to a claim bought against the associate by an independent third party which would otherwise be covered by this policy 4. Directors, Officers and Trustees Any liability incurred by you as a director, officer and/or trustee acting in the capacity as a director, officer and/or trustee. 5. Obligations to Employees Any breach of any obligation owed by you as an employer to any employee or any applicant for employment. 6. Geographical and Jurisdiction Limits Any liability incurred by you outside the Geographical Limits stated in the schedule or any claim or circumstance instituted or pursued outside the Jurisdiction stated in the schedule. 7. Retroactive Date Any act, error or omission committed prior to the Retroactive Date as specified in the schedule. 8. Onerous Contractual Liability Any liability assumed by you in respect of a contract or any contract term that imposes any greater liability or obligation on you beyond the obligations of reasonable skill and care or imposes a greater financial liability or obligation for any claim covered under this policy than would otherwise be the case in law. V2 - SECTION B (page 6 of 16)

7 9. Pollution Any contaminant, irritant or other substance including, but not limited to asbestos, lead, smoke, vapour, water, oil, oil products, dust, fibres, soot, fumes, acids, alkalis, chemicals, or waste (including materials that have been or are intended to be recycled, reconditioned or reclaimed). 10. Radioactive and Nuclear Contamination a) Any ionising radiation or contamination by radioactivity from any irradiated nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel b) Any radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or its nuclear component. 11. Bankruptcy or Insolvency Insolvency or bankruptcy of you or your business. 12. War War, invasion, act of foreign enemy, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection or military or usurped power. 13. Virus Any legal liability arising from any form of virus unless arising out of any cover given under Loss of Documents or Virus Cover in Section A. 14. Terrorism Any legal liability or any cost or expense of whatsoever nature or wheresoever arising directly or indirectly from terrorism. 15. Joint Venture and Related Companies Any activities carried out in the name of a consortium, association, profit sharing scheme or joint venture in which you are a party other than in respect of a claim arising from a breach of your duties in performing your business activities which emanates from a wholly independent third party. 16. Products Liability The construction, supply, manufacture, sale, installation, repair, alteration or maintenance of goods, products or services by you or on your behalf unless you are entitled to indemnity for Breach of Professional Duty under the Insuring clause. 17. Valuation and Survey Reports on Real Property Surveys or valuations other than for the establishment of a price for the marketing of a property for sale or letting purposes. V2 - SECTION B (page 7 of 16)

8 18. Property Damage Damage to or destruction of any tangible property including loss of use (other than in respect of Loss of documents as detailed above) unless caused directly by any negligence or breach of professional duty by you, an employee or any person, firm or company directly appointed by you under a formal contract and acting on your behalf. 19. Collateral Warranty Any Collateral Warranty that has been assigned more than three times since the agreement was entered into or any other agreement unless your liability or financial penalty would not be any greater than those implied by statute or common law were this agreement not in place. 20. Defective Workmanship Any defective materials and/or defective workmanship. 21. Adjudication Exclusion Any claim arising from an adjudication clause in a contract that contains timetable provisions more onerous to you than those contained in the Scheme for Construction Contracts referred to in the Housing Grants Construction and Regeneration Act Tax Any payment of tax arising directly or indirectly from the breach of any taxation legislation or regulation. 23. Trading Loss or Market Fluctuation Losses a) Any trading losses or trading liabilities incurred by you or carried on by or on behalf of you. b) Any depreciation, failure to appreciate or loss of any investments where such depreciation, failure to appreciate or loss is a result of normal or abnormal fluctuations in any financial, stock or commodity or other markets which are outside your influence or control. This exclusion shall not apply to any survey and/or valuation of any real property for the purpose of any actual or proposed sale, purchase, insurance or asset valuation purposes undertaken by you in performing your business activities. 24. Arbitration Any determination made by an arbitrator, unless the arbitrator is independent of the parties to the claim. 25. Financial Services Regulation Any liability from any part of Your Business Activities which is regulated by the Financial Services and Market Act 2000 other than any insurance mediation activity or mortgage mediation activity relating to general insurance contracts only and for which you have permission pursuant to Part IV of the FSMA. 26. Other Insurance Any claim where you are entitled to indemnity under any other insurance except in respect of any excess beyond the amount which would have been payable under such insurance had this policy not been in place. V2 - SECTION B (page 8 of 16)

9 SECTION C - CONDITIONS 1. Cancellation a) You may cancel this policy if you cease to trade or sell your business. You shall become entitled to a return of Premium which will be calculated on a pro rata basis in respect of the unexpired portion of the policy period plus a 20 administration fee. Any such return of Premium is subject to no claim(s) having been paid or being outstanding (in whole or in part) in respect of the expired portion of the policy period. b) We may cancel this policy by sending 30 (thirty) days notice in writing to your last known postal and address and stating the reason for cancellation. Where this Condition is exercised, you shall become entitled to a return of Premium which will be calculated on a pro rata basis in respect of the unexpired portion of the policy period. Any such return of Premium is subject to no claim having been paid or being outstanding (in whole or in part) in respect of the expired portion of the policy period. c) We may cancel the policy immediately if the premium has not been paid. If a claim has been notified, paid or is outstanding in the policy period then the annual premium remains due in full. 2. Choice of Law and Jurisdiction You are free to choose the law applicable to this policy. Your policy will be governed by the law of England and Wales unless you and we have agreed otherwise. 3. Claims Procedures a) You must notify us within 48 hours of any notice of intention to adjudicate served on or by you. b) If a) above does not apply, you must give immediate written notice to us of any claim or circumstance that may be covered under this policy and supply all such additional information as we may require within 30 days of such incident. Every letter of claim, writ, summons or process and all documents relating thereto and any other written notification shall be forwarded unanswered to us immediately they are received. c) No admission of liability or settlement of any circumstance or claim shall be made without our written consent. d) You will provide prompt and full co-operation to us in the supply of any information we require, including meeting any legally required response times. e) We shall be entitled to take over the conduct of any claim at our sole discretion. f) If you do not comply with the Claims Procedures you may lose all right to cover under your policy or receive payment for a claim. V2 - SECTION C (page 9 of 16)

10 4. Contracts (Rights of Third Parties) Act 1999 A person or company who is not party to this policy has no rights under the Contract (Rights of Third Parties) Act 1999 to enforce any terms of this policy but this does not affect any right or remedy of a third party to enforce any other right or remedy they may have. 5. Discharge of Liability We may at any time pay the limit of indemnity or a smaller amount for which a claim can be settled after deduction of any sum already paid. We will have no further liability under this policy for any further payment of such claim except for costs incurred prior to the payment of the claim or other disbursements incurred and agreed in writing by us. 6. Dishonest and Fraudulent Acts If a claim arises out of any dishonest or fraudulent act or omission on the part of any employee, partner or director or any person who is acting on your behalf under your authority we shall not pay for: a) any person committing or condoning such dishonest or fraudulent act or omission b) any dishonest or fraudulent acts or omissions committed by any person after you discover their dishonest or fraudulent acts or omissions or have reasonable cause to suspect them 7. Subrogation At our request and at our expense you must undertake or permit all such acts and things as may be necessarily or reasonably required by us for the purpose of enforcing any rights and remedies or of obtaining relief or indemnity from other parties to which we shall be or could become entitled upon paying any claim or loss under this policy. Such acts may be required before or after indemnification by us. 8. Security Standards You must maintain adequate systems and procedures for the creation and storage of back-up computer records in respect of documents in your custody and control and maintain an Information Security policy including but not limited to the identification, remediation and patching of any software errors or computer system vulnerabilities. 9. Policy Disputes In the event of any dispute regarding the meaning, effect or validity of this policy the dispute will be resolved by reference to a Queen s Counsel to be agreed upon by you and us and whose decision will be binding on both parties. V2 - SECTION C (page 10 of 16)

11 10. Alterations You must tell us as soon as possible of any change to the information you provided or any new information that could affect this insurance. 11. Non-Disclosure Pre-inception: We will not exercise our right to avoid this policy or a claim where the following is alleged: a) non-disclosure and/or misrepresentation of facts b) incorrect particulars and or statements c) non-disclosure of information that may give rise to a claim Provided you can establish to our satisfaction that there was no fraud, intent to deceive, or recklessness by you. Post inception: We will not exercise our right to avoid this policy or a claim where the following is alleged: a) breach of an express or implied policy conditions including material disclosure and/or Provided you can establish to our satisfaction that there was no fraud, intent to deceive, or recklessness by you. Pre and Post inception If you knew of a claim or circumstance prior to the inception of this policy and we agree to pay a claim then any cover provided under this policy will not exceed the cover provided by your previous insurer. If we agree to pay a claim and your actions have prejudiced our position then we may reduce the amount paid accordingly to a sum which in our reasonable opinion would have been payable by us if the prejudice had not occurred. In the absence of any fraudulent, deceitful or reckless intention to deceive we reserve the right to amend the terms, conditions and premium for this policy on receipt of any information that has been misrepresented or omitted to be disclosed to us. Any amendments will be proportionate to our view of any prejudice caused. 12. Fraud Condition If you and/or anyone acting on your behalf acts in a fraudulent way then we may: a) not pay the claim b) not pay any other claim which has or will be made under this policy c) cancel this policy from the date of inception without any refund of premium d) inform the police of the circumstances V2 - SECTION C (page 11 of 16)

12 SECTION D DEFINITIONS The following words or phrases listed below will have the same meaning wherever they appear in your policy and regardless of whether the singular or plural is used. A defined word or phrase will be in bold font each time it appears in the policy except where used in headings and titles. Associate means any direct or indirect ownership, control or management: a) you have in any business b) any entity or person has in your business Award means a sum which you become liable to pay by reason of an adjudicator s or an Ombudsman s decision. Bodily injury means injury and includes death, illness, disease, nervous shock or psychiatric illness. Business activities means activities directly connected with your business as disclosed to us (in accordance with any statement of fact, if issued) by you or an employee. Circumstance means any matter which may lead to a claim against you under this policy. Claim means any demand made on or assertion of any right by a third party against you for financial compensation for loss. All claims from the same act, error or omission or series of acts, errors or omissions, as a result of or arising directly or indirectly from the same source or original clause, will be regarded as one claim. Computer system means any computer data processing equipment, media or part thereof or system of data storage and retrieval or communications system, network protocol or part thereof or any storage device, microchip, integrated circuit, clock system or any similar device or any computer software (including but not limited to application software, operating systems, runtime environments or compiler), firmware or microcode. Costs means all reasonable costs, fees and expenses incurred with our prior written consent in the investigation, mitigation, defence, adjustment and appeal of any claim or the mitigation or investigation of any circumstance. Damage means accidental physical loss, destruction or damage to tangible property. V2 - SECTION D (page 12 of 16)

13 Director means a director appointed as to the Company named on the schedule where such Limited Company has been incorporated under the Companies Acts Documents means any document, digital data, microcode or information used in the provision of your business activities belonging to you or for which you are legally responsible. Employee means any natural person, other than a partner, principal, member or director of Company named in the schedule who is, or was under a contract of service or apprenticeship, supplied to, hired or borrowed by you or under any work experience or similar scheme whilst employed or engaged by you and under your control and/or direction in connection with your business activities. Excess means the first amount of each and every claim for which you are responsible as stated in the schedule. Costs will not be included within the excess unless otherwise stated in the schedule. Limit of indemnity means the sum specified in the schedule. Costs are payable in addition to the limit of indemnity unless otherwise stated in the schedule. Member means any person in your business who is a member of a limited liability partnership as defined in the Limited Liability Partnership Act Partner refers to the meaning given by the Partnership Act Policy means the contents of this document together with the schedule, statement of fact and any endorsements attached or issued. Policy period means the period of insurance stated in the schedule. Property means material or tangible property. Proposal shall mean the proposal form (whether in electronic or paper form) completed. Schedule means the document entitled Schedule attached to this policy. Statement of fact means the record of information you agreed and/or provided to us (or your insurance agent) about you and your Business. V2 - SECTION D (page 13 of 16)

14 Statutory obligations means costs you incur arising from proceedings brought against you under the following: a) The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) b) The Estate Agents Act 1979 c) The Consumers, Estate Agents and Redress Act 2007 d) The Health and Safety at Work etc Act 1974 e) The Health and Safety at Work (Northern Ireland) Order 1978 f) The Construction (Design and Management) Regulations 1994, or g) Any similar or successor legislation to the legislation described in a) to f) above Terrorism means any acts of force or violence undertaken with the aim of making the public fearful or of influencing or overthrowing any government or public authority. Virus means any unauthorised executable code that replicates itself through a computer system or network. This definition will include any logic bomb, worm or Trojan Horse. We/Us/Our means Axa Insurance UK plc. You/Your means: a) the entity(s) shown in the schedule as the policyholder b) the entity s principals, members, partners, or directors c) all former partners, members or directors d) any retired partner, director or member of the insured entity, company or organisation e) any predecessor in business to any entity, company or organisation that is shown in the schedule f) all who may become partners, members, or directors within the policy period g) the estate, heirs, executors, legal or personal representatives of any person referred to a, b, c, d, e, or f above in the event of their death or incapacity V2 - SECTION D (page 14 of 16)

15 COMPLAINTS Custodian aims to provide the highest standard of service to every customer. If you are dissatisfied with the service you are receiving please let us know so that it can be rectified. All complaints are taken seriously. Following the steps below will help ensure your concerns are given a fair response. How to make your complaint The majority of complaints, including those relating to claims, can be resolved quickly and satisfactorily by contacting Custodian or your broker if you have one. Telephone contact is often the most effective way to resolve complaints quickly. Alternatively you can write to us at: Custodian Complaints Cornhill London EC3V 3QQ Tel: complaints@custodianinsurance.co.uk When you make contact please provide the following information: name address and postcode, telephone number and address (if you have one) your policy and/or claim number, and the type of policy you hold the name of your insurance agent/firm (if applicable) the reason for your complaint Any written correspondence should be headed COMPLAINT and you may include copies of supporting material. V2 - COMPLAINTS (page 15 of 16)

16 Beyond Custodian Should you remain dissatisfied with the final written response from Custodian, you may be eligible to refer your case to the Financial Ombudsman Service (FOS). The FOS is an independent body that arbitrates on complaints about general insurance products. The FOS can only consider your complaint if you have received the final decision from Custodian decision. You have six months from the date of Custodian s final response to refer your complaint to the FOS. This does not affect your right to take legal action. Financial Ombudsman Service South Quay Plaza 183 Marsh Wall London E14 9SR Tel: * Fax: * complaint.info@financial-ombudsman.org.uk Web: * free for people phoning from a fixed line (for example, a landline at home) Tel: (free for mobile-phone users who pay a monthly charge for calls to numbers starting 01 or 02) Our promise to you p Your complaint will be fully investigated p Your complaints will be acknowledged in writing promptly. p You will be kept informed of progress. p Everything will be done to resolve your complaint and improve the service offered to you.. Financial Services Compensation Scheme (FSCS) Custodian acts on behalf of AXA Insurance UK plc who are covered by the Financial Services Compensation Scheme (FSCS). You may be entitled to compensation in the unlikely event we cannot meet our obligations to you. This depends on the type of insurance, size of the business and the circumstances of the claim. Further information about the compensation scheme arrangements is available from the FSCS ( V2 - COMPLAINTS (page 16 of 16)