Multimedia Liability Insurance Policy

Transcription

1 Multimedia Liability Insurance Policy

2 Multimedia Liability Insurance Policy CONTENTS SECTION 1 MULTIMEDIA LIABILITY 1 SECTION 2 PUBLIC & PRODUCTS LIABILITY 4 SECTION 3 DEFENCE COSTS 4 SECTION 4 LIMITS OF LIABILITY 4 SECTION 5 SPECIFIC EXCLUSIONS 5 SECTION 6 GENERAL EXCLUSIONS 5 SECTION 7 GENERAL CONDITIONS 8 SECTION 8 CLAIMS CONDITIONS 10 SECTION 9 DEFINITIONS 11 Head Office Brisbane Melbourne Adelaide Level Clarence Street PO Box Level 9 Level 6, 459 Collins Street Melbourne VIC 3000 Offices on the Park Suite 20 Sydney NSW Adelaide Street Brisbane QLD 4000 GPO Box 5150 Melbourne VIC Greenhill Road Wayville SA 5034 Phone: (02) Phone: (07) Phone: (03) Phone: (08) Fax: (02) Fax: (07) Fax: (03) Fax: (08) AXIS Specialty Australia (AXIS), a branch of AXIS Specialty Europe Limited, ARBN , is authorised and supervised by the Australian Prudential Regulation Authority as a general insurer. AXIS Specialty Europe Limited is authorised and regulated by the Irish Financial Services Regulatory Authority.

3 Multimedia Liability Insurance Policy Preamble In consideration of the payment of the Premium and in reliance on the contents of the Proposal the Insured has provided, We agree to provide indemnity subject to the terms of this Policy. SECTION 1 MULTIMEDIA LIABILITY THIS IS A CLAIMS MADE LIABILITY SECTION Subject to the definitions, terms, conditions, limitations and exclusions of this Policy, We agree to indemnify the Insured up to the Limit of Liability specified in Section 1 of the Schedule, for liability in respect of all Claims made against the Insured during the Period of Insurance and notified to Us in accordance with Claims Condition 8.1.1: 1.1 Multimedia Liability arising from a Multimedia Event in connection with the Insured s Multimedia; 1.2 Business, Cyber and Advertising Liability arising from a Business Event including Public Appearance; and 1.3 Breach of Professional Duty for civil liability (where the Schedule is specified to include Breach of Professional Duty) arising from a breach of professional duty owed in the conduct of the Insured s Business. Automatic Extensions These automatic extensions form part of Section 1 and are subject to all of the Policy terms and conditions. The inclusion of these automatic extensions will be part of and not in addition to the Limit of Liability of the Policy. 1.4 Awards by Ombudsman We agree to indemnify the Insured against any award made by an ombudsman in respect of any case accepted by the ombudsman for review in his position as ombudsman PROVIDED THAT the ombudsman s inquiry is ordered or commissioned during the Period of Insurance We shall only be liable to indemnify the Insured against any ombudsman s award above the excess Our aggregate liability for all Claims under this extension shall not exceed $25, Continuous Cover Notwithstanding Specific Exclusion 5.3 (Prior Claims or Circumstances), and in the absence of fraudulent non-disclosure by the Insured, We agree to extend indemnity for any Claim arising from or attributable to or in consequence of any fact or circumstance which could have been, but which was not, notified under a previous multimedia or professional indemnity insurance policy ("Previous Policy") PROVIDED THAT: (a) if the fact or circumstance had been notified under the Previous Policy, the Insured would have been entitled to indemnity under the Previous Policy; (b) other than Our right to refuse indemnity due to: (i) failure to disclose the fact or circumstance to Us before this policy was entered into; or (ii) the application of specific exclusion 5.3 the Insured would be entitled to indemnity under this Policy; and (c) the Insured has continued without interruption to be insured under a multimedia or professional indemnity insurance policy with Us from the time when the fact or circumstance could have been notified under the Previous Policy until the time when the Claim, fact or circumstance is notified to Us Our liability for the Claim shall not exceed the amount of indemnity which would have been available under the Previous Policy if the fact or circumstance had been notified under the Previous Policy or the available Limit of Liability under this Policy, whichever is the lesser. 1.6 Consultants, Contractors & Agents (Vicarious Liability) We agree to indemnify the Insured for any Claim arising out of work undertaken or Matter provided by consultants, contractors or agents under Contract to the Insured PROVIDED THAT there is no indemnity for the consultant s, contractor s or agent s own 1 PIMML0310

4 liability unless the consultant, contractor or agent is deemed to be an Insured in accordance Definition 9.13 (Insured). 1.7 Costs of Disciplinary and Official Inquiries We agree to indemnify the Insured for the costs incurred by Us, or the reasonable costs incurred by the Insured with Our prior written consent, of the Insured s legal representation at any inquiry (including any coronial inquiry, any inquiry under the disciplinary rules of a professional association of which the Insured is a member or any inquiry by a regulatory authority) or other similar process relating to or connected with the Insured s Multimedia or ordinary business operations, which the Insured is compelled to attend PROVIDED THAT: (a) the inquiry is ordered or commissioned during the Period of Insurance; (b) We shall be entitled to nominate lawyers to represent the Insured; (c) the Insured notifies Us in writing within the Period of Insurance and within 28 days of having received notice of the inquiry; (d) there is no indemnity under this clause for the costs of: (i) any process concerning any act, error or omission committed or allegedly committed; or (ii) any process conducted; within the territorial limits of the United States of America or Canada or their territories or protectorates; and (e) Our aggregate liability for all Claims under this clause shall not exceed $100, Innocent Party Indemnity Notwithstanding General Exclusion 6.6 (Dishonest or Reckless Acts), We agree to indemnify the Insured under this Policy where the Claim arises from a dishonest, fraudulent, criminal or malicious act or omission of any of the Insured s Employees, Officers, Partners or Directors or consultants, contractors or agents appointed by the Insured PROVIDED THAT: (a) there is no indemnity under this clause for any person committing or condoning the act or omission; (b) there is no indemnity under this clause for any loss sustained as a result of any act or omission occurring after the date on which the Insured first discovers, or has reasonable cause for suspicion of, a dishonest, (c) fraudulent, criminal or malicious act or omission on the part of any person; and there is no indemnity under this clause for loss of negotiable instruments, bearer bonds or coupons, stamps, bank or currency notes. 1.9 Joint Ventures We agree to indemnify the Insured for any Claim arising out of the Insured s participation in any joint venture in connection with the Insured s Multimedia or the Insured s Business but only to the extent of the Insured s proportion of any liability incurred by such joint venture Loss of Documents We agree to indemnify the Insured for the costs, charges and expenses, incurred with Our prior written consent, which they incur in replacing or restoring Documents (including but not limited to Documents which are the property of the Insured) which have been destroyed or damaged, or lost or mislaid and cannot be found after diligent search PROVIDED THAT: (a) the Insured first discovered the destruction, damage, loss or mislaying of the Documents during the Period of Insurance; (b) the Insured notified Us in writing during the Period of Insurance and within 28 days of discovering the destruction, damage, loss or mislaying of the Documents; (c) the Insured supplies satisfactory documentary proof of their loss, including bills and accounts; (d) the Documents were in the Insured s physical custody or control or in the physical custody or control of another person to whom the Insured entrusted, lodged or deposited the Documents in the ordinary course of the Insured s business activities; and (e) Our aggregate liability for all Claims under this clause shall not exceed $500,000 or the Limit of Liability, whichever is the lesser There is no indemnity under this clause for any costs, charges or expenses as a result of any Document being destroyed or damaged by normal wear, tear or other gradual processes. 2 PIMML0310

5 1.11 Extended Reporting Period The Insured shall be entitled to elect to extend the period of time for reporting a Claim for 365 days immediately following the expiry of the Period of Insurance PROVIDED THAT: (a) the Insured can only make this election by giving Us written notice no later than 14 days after the expiry of the Period of Insurance; (b) the Insured must pay Us the last annual Premium plus any applicable statutory charges and any administration fee that may be charged by Us; (c) there is no cover under this clause for any Claim arising out of a Multimedia Event, Business Event or breach of professional duty committed after the expiry of the Period of Insurance; (d) the Insured does not replace this Policy with a similar policy at any time during the extended reporting period, irrespective of whether the policy has a retroactive date Trade Practices Act 1974 (Cth) The indemnity provided by Section 1 is extended to include any Claim for unintentional breaches of the Trade Practices Act 1974 (Cth) or corresponding State legislation PROVIDED THAT there is no indemnity: (a) for liability under any criminal provisions of such legislation; or (b) when the Insured knowingly engages in such conduct or condones such conduct Withdrawal Expenses We will indemnify the Insured for reasonable and necessary costs and expenses incurred with Our written consent due to the withdrawal and destruction, if appropriate, of Matter that would if not withdrawn become the subject of a Claim under this policy. Precedent to indemnity, the Insured must give Us written notice of the event the subject of this Automatic Extension as soon as possible after becoming aware of the event and during the Period of Insurance. The Insured s own costs and expenses will not be covered by this Automatic Extension Our aggregate liability for all Claims under this clause shall not exceed $100,000. Optional Extensions These optional extensions form part of Section 1 of the Policy and are subject to all Policy terms and conditions, their inclusion will be part of and not in addition to the Limit of Liability of the Policy. Limit(s) of Liability are sub limited under these optional extensions and UNLESS a sub limit of liability is provided next to the appropriate optional extension heading in the Schedule, these optional extensions WILL NOT apply to the Policy Fidelity (Optional) We agree to indemnify the Insured for any loss of money, negotiable instruments, bearer bonds or coupons, stamps, bank or currency notes in the Insured s care, custody or control which belongs to the Insured or for which the Insured is legally responsible, which the Insured sustains as a result of any dishonest or fraudulent act of any of the Insured s Employees and committed in the conduct of the Insured s Business PROVIDED THAT: (a) there is no indemnity for any person committing or condoning the dishonest or fraudulent act; (b) the Insured first discovered the loss during the Period of Insurance; (c) the Insured notified Us in writing within the Period of Insurance and within 28 days of having reasonable cause for suspicion of a loss or discovery of a loss; (d) there is no indemnity under this clause for loss sustained by the Insured as a result of any act committed after the date on which the Insured first discovers, or has reasonable cause for suspicion of, dishonesty or fraud on the part of the Employee concerned; (e) the Insured provides all information and assistance that We request in order to recover from the Employee or the Employee s estate; (f) the Excess shall apply for each and every individual dishonest or fraudulent act Our total liability for all Claims under this clause shall not exceed the Limit of Liability for fidelity specified in the Schedule. 3 PIMML0310

6 1.15 Previous Business (Optional) We agree to extend indemnity under this Policy to any person who is or becomes a Officer, Partner or Director of the Insured for any Claim arising from that person s legal liability for a Multimedia Event or Business Event or breach of professional duty committed or allegedly committed by that person in the conduct of a prior business of the same nature as the Insured s Business at a time before the person became a Officer, Partner or Director and in which business the person is no longer involved Our aggregate liability for all Claims under this clause shall not exceed the Limit of Liability for previous business specified in the Schedule This extension of indemnity only applies in excess of any other multimedia liability or professional indemnity insurance policy in respect of the previous business under which the person claiming under this extension is entitled to indemnity. SECTION 2 PUBLIC & PRODUCTS LIABILITY THIS IS AN OCCURRENCE LIABILITY SECTION Subject to the definitions, terms, conditions, limitations and exclusions of this Policy, We agree to indemnify the Insured up to the Limit of Liability specified in Section 2 of the Schedule, for: 2.1 Public & Products Liability legal liability to pay compensation in respect of Personal Injury or Property Damage occurring within the Territory during the Period of Insurance as a result of an Occurrence happening in connection with the Insured s Business. Additional benefits 2.2 Joint Ventures Cover We agree to extend indemnity under Section 2 for the Insured s liability, singly or with others, in respect of all Occurrences happening in connection with the conduct of the Insured s Business as a joint venture or in partnership with others, PROVIDED ALWAYS that such cover does not extend to any joint venturer or partner of the Insured. 2.3 Tenant's Liability Cover We agree to extend indemnity under Section 2 (Public and Products Liability) to any lessor with whom the Insured has entered into an agreement for the rental or lease of premises (not belonging to the Insured) from which the Insured conduct the Insured s Business, PROVIDED ALWAYS that no wider cover shall be afforded to the lessor than would have been provided hereunder to the Insured if the Insured had been held legally liable for the same Personal Injury or Property Damage and only where that liability arises out of the Insured s use of such premises in the carrying on of the Insured s Business. SECTION 3 DEFENCE COSTS Subject to the definitions, terms, conditions, limitations and exclusions of this Policy: 3.1 Defence Costs We will indemnify the Insured for Defence Costs reasonably incurred in the defence or settlement of a Claim where the Claim has been admitted under this Policy. No Defence Costs other than those incurred with Our prior written consent shall be payable but, such consent will not be unreasonably withheld by Us. SECTION 4 LIMITS OF LIABILITY 4.1 Aggregate Limit of Liability In respect of Section 1 Our liability for any one Claim and for all Claims in the Period of Insurance will not exceed the Limit of Liability specified against Section 1 in the Schedule of this Policy In respect of Section 2 Our liability for all Claims in relation to any one Occurrence will not exceed the Limit of Liability specified against Section 2 in the Schedule of this Policy PROVIDED THAT for Claims in respect to Products Liability Our liability will be limited in the aggregate to the Limit of Liability specified against Section 2 in the Schedule of this Policy In respect to Section 1, all Claims arising from one and the same source or originating cause shall be deemed to constitute one Claim. 4 PIMML0310

7 4.1.4 Under no circumstances shall any claim give rise to indemnity under both Section 1 and Section Where the Limit of Liability in the Schedule is specified to be exclusive of Defence Costs, We agree, in addition to the Limit of Liability, to pay the Defence Costs of any Claim which is the subject of indemnity under Sections 1 or 2 PROVIDED THAT: (a) where the Insured s liability exceeds the available Limit of Liability, We shall only pay such proportion of the Defence Costs as the available Limit of Liability bears to the Insured s liability; (b) where the amount We have paid or incurred as Defence Costs exceeds the share that We are obliged to pay under 4.1.5(a), the Insured shall upon demand pay to Us the excess amount. Alternatively, We may deduct the excess amount from any entitlements the Insured may have at any time under this Policy Where the Limit of Liability in the Schedule is specified to be inclusive of Defence Costs, We agree to pay the Defence Costs of any Claim which is the subject of indemnity under Sections 1 or 2 PROVIDED THAT the total of our liability together with the Defence Costs shall not exceed the applicable Limit of Liability. 4.2 Automatic Reinstatement of the Aggregate for Section 1 We agree to one reinstatement of the Limit of Liability under Section 1 in respect of any subsequent Claims which are totally unrelated to any previously advised Claim. In the event that the Insured has additional coverage in excess of this Policy in respect to Section 1 then the applicable reinstatement will only become available when such coverage has been exhausted. 4.3 Excess The amount of the Excess shall be borne by the Insured at its own risk in respect of each Claim Where the quantum of any Claim is less than the Excess, the Insured shall be liable for the Claim and the Defence Costs Where the Excess is specified to be inclusive of Defence Costs, the Insured shall pay the Defence Costs as they are incurred, up to the amount of the Excess Where the Insured is entitled to claim an Input Tax Credit for a payment made by the Insured as an Excess, then the monetary limit of the Excess will be deemed to be net of the Input Tax Credit. SECTION 5 SPECIFIC EXCLUSIONS APPLICABLE TO SECTION Exclusions to Section We will not indemnify the Insured under Section 1 of this Policy for: 5.2 Personal Injury or Property Damage any Claim, or Defence Costs directly or indirectly arising from any Personal Injury or Property Damage, except that this exclusion shall not apply to: (i) Personal Injury or Property Damage arising out of a Contextual Error; or (ii) sickness, mental anguish or emotional distress actually or allegedly arising from a Claim otherwise covered by the Policy. 5.3 Prior Claims or Circumstances any Claim made, threatened or in any way intimated against the Insured prior to the Period of Insurance; or any Claim attributable to or in consequence of any fact or circumstance: (i) of which written notice has been given under any previous insurance policy; (ii) noted on the Proposal for the current Period of Insurance or on any previous proposal; or (iii) of which the Insured first became aware prior to the Period of Insurance and which the Insured knew or ought reasonably to have known may give rise to a Claim. SECTION 6 GENERAL EXCLUSIONS We will not indemnify the Insured under any section of this Policy for any Claim, Occurrence liability, or Defence Costs directly or indirectly arising from: 6.1 Asbestos asbestos. 5 PIMML0310

8 6.2 Animal, Aircraft or Watercraft or in connection with the ownership, possession or use of any animal, aircraft or watercraft. 6.3 Assumed Liability any contractual or other assumed liability or any liability assumed by an Insured under any guarantee or warranty, PROVIDED THAT this exclusion does not apply in the event of: (a) legal liability which the Insured would have incurred in the absence of such contract, warranty, guarantee or fiduciary relationships; (b) liability Assumed Under Contract; or (c) breach of licence, contract or agreement as described in Definition 9.20 (Multimedia Event) (v), (vi) and (vii). 6.4 Breach of Duty under the Corporations Law an actual or alleged breach by any Director, Officer, Partner or Employee of their duty to the Insured under the Corporations Act 2001 (Cth), similar, related or replacement legislation, in connection with their direction or management of the Insured. 6.5 Cost Over Runs the provision of cost guarantees, estimates of probable cost, estimates of financial savings or contract price, costs estimates being exceeded or estimate of sales of revenue. 6.6 Dishonest or Reckless Acts any actual or alleged: (a) dishonest, fraudulent, criminal or malicious act; (b) willful breach of any statute, contract or duty; (c) conduct with a reckless disregard for the consequences thereof; or (d) breach of any fiduciary duty or fiduciary relationship by the Insured. 6.7 Electromagnetic Fields or Radiofrequency Radiation or, in connection with or attributable to or in any way involving any actual or alleged electromagnetic fields or radiofrequency radiation. 6.8 Employer s Liability or based upon, attributable to, or in consequence of the Insured s liability as an employer, including for Personal Injury of any person occurring in the course of their employment with the Insured (either as the Insured's Employee or as a contractor to the Insured) For the purpose of this exclusion Personal Injury shall mean personal injury, sickness, disease, or the death of any person including but not limited to mental injury, anxiety, stress, emotional upset or nervous shock. 6.9 Fines, Penalties and Damages or for an award of any fines, penalties, liquidated damages, punitive damages, exemplary damages, aggravated damages, or any other non-compensating damages of any kind PROVIDED THAT this exclusion does not apply to Automatic Extension 1.4 (Awards by Ombudsman) Fees or for a refund of professional fees or charges Insolvency or arising out of the Insured s insolvency, bankruptcy, liquidation, or failure to pay any trading debt Jurisdiction and Territorial Limits (a) any actual or alleged act, error or omission committed within the territorial limits of the United States of America or Canada or any of their territories or protectorates; or (b) any Claim which is brought in a court of law within the territorial limits of the United States of America or Canada or directly or indirectly arising from any settlement or for the enforcement of any judgment or order obtained within the territorial limits of, or determined pursuant to the laws of those countries or their territories or protectorates. PROVIDED THAT this exclusion shall not apply to Section 2 (Public and Products Liability) of this Policy in respect of or arising from the presence outside Australia or New Zealand of any Insured person under this Policy who is normally resident in Australia or New Zealand and who is not undertaking manual work or supervision of work of any kind whilst in the United States of America or the Dominion of Canada or their territories or protectorates. Defence Costs in respect to Claims under this proviso shall be inclusive of the Limit of Liability and not in addition to the Limit of Liability. 6 PIMML0310

9 6.13 Over-Redemption and violations for gambling laws Over-Redemption of coupons, awards or prizes from advertisements, promotions, games, sweepstakes, contests and games of chance; or violation of or noncompliance with any law or regulation governing or pertaining to gambling, gaming, lotteries or games of chance and any other act or omission associated with any such violation or noncompliance Own Property Damage Property Damage occurring to: (a) property owned by or leased or rented to the Insured, or (b) property in the Insured s or a contractor s physical or legal control, except: (i) to the extent of cover afforded by clause 1.10 (Loss of Documents); (ii) premises which are leased or rented to the Insured; (iii) the Insured s Employees property; (iv) Vehicles (not belonging to the Insured or used by or on the Insured s behalf) in the Insured s physical or legal control where such Property Damage occurs while any such vehicle is in a car park owned or operated by the Insured, PROVIDED THAT the Insured as part of the Insured s Business does not own or operate a car park for reward; (v) property which is in the Insured's physical or legal control for the purpose of repair, service, maintenance or alteration or which is on temporary hire or loan to the Insured. Our aggregate liability for all Claims under clauses (b) (iii) to (v) above shall not exceed $100, Professional Services professional or consulting services that are separate and distinct from the utterance or dissemination of Matter and are performed for others for a fee; PROVIDED THAT this exclusion 6.15 will not apply when the Schedule shows Breach of Professional Duty as included Radioactivity caused by or contributed to by ionising radiation or contamination by radioactivity from any nuclear fuel, weapon, medical isotope, waste or other material whether occurring naturally or otherwise, or by the radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof Related Entities brought or maintained by, or on behalf of: (a) any Insured; or (b) any person who, at the time of the act, error or omission giving rise to the Claim, is a Family Member of the Insured; or (c) any entity operated or controlled by any Insured or Family Member of the Insured Rights of Recovery any liability, loss or damage in respect of which the Insured has at any time foregone, excluded or limited a right of recovery Spam unsolicited electronic communications by or on behalf of the Insured, including unsolicited faxes, e- mails and telephone calls. This exclusion shall include actual or alleged violations of provincial, state, territorial, local or federal law, including non- Canadian and non-u.s. laws, any amendment to such laws, or violation of any order, ruling or regulation issued pursuant to such laws that regulate such electronic communications Terrorism caused or occasioned by or happening through or in consequence of terrorism or any action taken in controlling, preventing, suppressing any act or acts of terrorism or in any way relating thereto For the purposes of this Clause, terrorism means any act or acts (whether threatened or actual) of any person or persons involving the causing or occasioning or threatening of harm of whatever nature and by whatever means made or claimed to be made in whole or in part for political, religious, ideological or similar purposes Theft and Misappropriation of Trade Secrets Theft, disclosure or misappropriation of trade secrets, except that this exclusion shall not apply to Claims for or arising from disclosure of trade secrets when the disclosure is made in Insured s Multimedia. 7 PIMML0310

10 6.22 Trading Loss directly or indirectly arising out of or in connection with any trading loss or liability incurred by Your Business Vehicle Personal Injury or Property Damage arising out of the ownership, maintenance, possession or use by the Insured of any Vehicle which is registered; or in respect of which insurance is required by virtue of any legislation. PROVIDED THAT this exclusion shall not apply to Personal Injury or Property Damage arising from: (a) the delivery or collection of goods to or from any vehicle where such Personal Injury or Property Damage occurs beyond the limit of any carriageway or thoroughfare, or (b) the loading or unloading of any vehicle War or caused by war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, revolution, insurrection, military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority. SECTION 7 GENERAL CONDITIONS 7.1 Alteration to the Insured s Multimedia or the Insured s Business The Insured must notify Us in writing within 7 days of any material alteration to the Insured s Multimedia or the Insured s Business including but not limited to: (a) any material alteration made or permitted by the Insured to the nature of Insured s Multimedia or the Insured s Business including Public Appearance; (b) any acquisition by the Insured of, or merger of the Insured with, any other business, whether or not of the same nature as the Insured s Business; (c) (where the Insured is a natural person) the Insured becoming a bankrupt or entering into a debt agreement under Part IX of the Bankruptcy Act 1966 (Cth) or entering into an arrangement with creditors under Part X of the Bankruptcy Act; (d) (where the Insured is a company or body corporate) the appointment of an (e) administrator, receiver, provisional liquidator or liquidator to the Insured; and an Insured s licence, statutory registration or registration with their professional association being cancelled, suspended or having conditions imposed. Unless We agree in writing to provide cover to the altered Multimedia or altered Insured s Business, this policy will only respond to a: (i) Multimedia Event (ii) Business Event (including Public Appearance (iii) Breach of Professional Duty; or (iv) Occurrence committed or alleged to have been comitted prior to the material alteration occurring. 7.2 Assignment of Interest No change in, modification of or assignment of any interest under this Policy shall have effect at law unless made with Our written approval. 7.3 Cross Liability (applicable to Section 2 only) Where the Insured are comprised of more than one person or entity, each of the parties will be considered as a separate and distinct unit and the cover afforded under this Policy will be considered as applying to each party in the same manner as if a separate Policy had been issued to each PROVIDED ALWAYS that nothing in this Condition will result in an increase in the applicable Limit of Liability or the Period of Insurance under this Policy. 7.4 Cancellation The Insured may cancel this Policy at any time by notifying Us in writing. We may also cancel this Policy, but We can only do so in accordance with the law. In the event of cancellation and subject to any legal requirements, any refund of Premium and the amount of that refund will be at Our sole discretion. 7.5 GST Where under this Policy We are obliged to indemnify the Insured against any Claim or Defence Costs for which the Insured is entitled to an input tax credit for the Goods and Services Tax (GST), the amount of any such input tax will be deducted from any amount payable by Us. 8 PIMML0310

11 7.6 Newly Created or Acquired This policy extends to any newly created, acquired, or formed media or entities if reported to Us within ninety (90) days of their creation, acquisition or formation. Any such media or entity will be automatically added to the policy s coverage PROVIDED THAT: (a) its total revenue at the time of creation, acquisition or formation represents 10% or less of the Insured s annual revenues as stated at the inception of the Policy on the most recent Proposal on file with Us. If the total revenue of any such media or entity is greater than 10% of the Insured s annual revenues, it will be added to the Policy s coverage subject to Our written agreement, which will not be unreasonably withheld; (b) any cover provided by this extension will only apply in respect of liability arising from a Multimedia Event or Business Event or Occurrence occurring subsequent to the date of creation, acquisition or formation, unless otherwise agreed in writing by Us; (c) such cover does not extend beyond the expiry date specified in the Schedule; and (d) that the nature of the business activities of any such acquisition or creation is similar to the business activities specified in the Schedule Where cover is required beyond the provisions of General Condition 7.6 (Newly Created or Acquired), We may at Our discretion agree to provide further coverage where the Insured has notified Us of the creation, acquisition or formation of the entity or subsidiary and have provided all the necessary information requested by Us. Any such offer will be SUBJECT TO any terms imposed by Us and or additional premium required by Us and agreed to by the Insured. 7.7 Run off Cover Merger or Acquisition We agree that if during the Period of Insurance the Insured ceases to operate or is merged into or acquired then the cover provided by this Policy will continue until the expiry of the Period of Insurance, PROVIDED THAT: this cover will only apply to a Multimedia Event or Business Event or Occurrence committed or occurring prior to the date that the Insured ceases to operate or was merged into or acquired by another entity. 7.8 Policy Construction, Interpretation and Notices The construction, interpretation and meaning of the terms of this Policy shall be determined in accordance with the laws of the state or territory in which this Policy is issued. Any dispute relating to this Policy shall be submitted to the exclusive jurisdiction of the courts of that state or territory The headings in this Policy are included for descriptive purposes only and do not form part of this Policy for the purpose of its construction or interpretation In this Policy words used in the singular shall include the plural and vice versa Any notice which We or the Insured are required or elect to give under this Policy, may be given to or by Us Any notice given in writing by Us to the first named Insured in the Schedule will be treated as notice to each of the parties covered under this Policy. 7.9 Severability and Non-Imputation Where the Insured is more than one person or entity and one or more of those persons or entities: (a) failed to comply with the duty of disclosure under section 21 or section 21A of the Insurance Contracts Act 1984 (Cth); (b) made a misrepresentation to Us before this Policy was entered into; or (c) failed to comply with a term of this Policy; the right of another person or entity to indemnity under this Policy shall not be prejudiced as a result PROVIDED THAT the other person or entity: (i) acted in good faith in the performance of their or its duties and obligations both under this Policy and at law; (ii) was entirely innocent of, had no prior knowledge of, or did not have reasonable cause to have knowledge of the relevant conduct; (for the purposes of this clause, knowledge imputed to a person by reason of partnership or otherwise is to be disregarded); and (iii) notifies Us in writing of all facts known to them as soon as is reasonably 9 PIMML0310

12 practicable upon becoming aware of the relevant conduct This clause shall not operate to increase the Limit of Liability as stated in the Schedule. SECTION 8 CLAIMS CONDITIONS 8.1 Notice of Claims For Section 1, the Insured must give us written notice of any Claim made against the Insured as soon as reasonably practicable and during the Period of Insurance For Section 2, the Insured must as soon as reasonably practicable give Us written notice of any Occurrence of which the Insured is aware and which may give rise to a liability covered under this Policy. 8.2 Multimedia Claims In respect of Claims under clauses 1.1 and 1.2 of Section 1 the following conditions will apply Insured s Option to Defend (a) With respect to each Claim for which coverage is afforded under this Policy, the Insured shall have the option to defend such Claim itself or to assign the duty to defend such claim to Us. (b) Unless the Insured notifies Us of its election to assign the duty to defend a Claim pursuant to Claims Condition below the Insured shall have the duty to defend such Claim. The Insured may employ a legal representative from Our preferred legal panel or a legal representative of its own choosing subject to prior written approval by Us, which shall not be unreasonably withheld, for defence of any such Claim as follows: (i) If the Claim is litigated, the Insured will file proper pleadings in the litigation within the time required by law for filing same, keep Us informed of all developments and supply any documents requested by Us; and (ii) if the litigation proceeds to trial, the Insured will continue to conduct the defence thereof. (c) The Insured and the legal representative employed to defend the Insured will comply with all litigation and billing standards or procedures requested by Us. (d) We at Our own election and expense, will have the right to associate with the Insured in the defence Election to Assign Duty to Defend (a) The Insured may elect to assign the duty to defend any Claim to Us by notifying Us in writing. Such notice must be received by Us within a reasonable time after such Claim is first made, but in no event later than ten (10) days from the date on which the complaint or other legal process is served on an Insured. Upon receiving such notification, We shall have the duty to defend such Claim pursuant and subject to all terms and conditions of the policy. Where deemed necessary We will employ legal representatives to represent the Insured. The Insured may at any time consult with Us with respect to selection of legal representatives. (b) The Insured will in all respects cooperate with, and provide information requested by, Us with respect to any Claim for which cover is afforded by this Policy and, at Our request, assist in mitigating damages, making settlements and in enforcing any right of contribution or indemnity against any person or entity who may be liable to the Insured. The Insured will attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses Refusal to Reveal Identity The rights of an Insured under this policy will not be prejudiced by the refusal of any Insured, or anyone for whose acts any Insured is legally liable, to reveal the identity of a confidential source or to divulge confidential information in connection with a Claim under the Policy Retraction or Correction The Insured will have sole discretion on whether to retract, correct or clarify Matter that is the subject of a Claim under the Policy. 8.3 Breach of Professional Duty and Public & Products Liability Claims We shall be entitled at any time to take over and conduct, in the Insured s name, the defence or settlement of any Claim in respect of which indemnity is granted pursuant to Section 1.3 (Breach of 10 PIMML0310

13 Professional Duty) or Section 2 (Public & Products Liability) Lawyers retained by Us to act on the Insured s behalf shall at all times be at liberty to disclose to Us any information or document obtained (whether by the Insured or otherwise) in the course of so acting, and the Insured agrees to waive any claim for client legal privilege to the extent that such privilege may otherwise prevent that disclosure to Us. 8.4 Defence and Settlement The Insured may settle any Claim for which the total cost and Defence Costs associated therewith is less than the amount of the Excess We shall not be liable for any settlement, Defence Costs, admission, offer or payment, or assumed obligation to which We have not consented in writing Where, in Our opinion, the liability of any Claim may exceed the available Limit of Liability, We shall be entitled at Our discretion to discharge Our liability by paying the available Limit of Liability to the Insured or on the Insured s behalf and paying the Defence Costs up to the date of that payment. In this situation: (a) if at the time of payment We are conducting the defence of the Claim, We shall also relinquish that conduct; and (b) Clause shall still apply The Insured must, when instructed by Us to do so, pay promptly within the terms of any proposed settlement the amount of the Excess. If the Insured fails or refuses to make that payment and We elect to make the payment on the Insured s behalf, We shall be entitled to deduct the amount from any entitlements the Insured may have at any time under this Policy. 8.5 Insured s Right to Contest a Claim In the event that We recommend a settlement of any Claim but the Insured does not agree with Our recommendation, the Insured may elect to contest the Claim PROVIDED THAT if the actual liability for the Claim exceeds the amount for which, but for the Insured's election, the Claim could have been settled, then: (a) Our liability for the Claim shall be the amount for which, but for the Insured's (b) election, a Claim could have been settled; and the Defence Costs of the Claim shall be the Defence Costs incurred with Our prior written consent up to the date of the Insured's election. 8.6 Our Right to Contest a Claim Having assigned the duty to defend to Us the Insured will not be required to contest any Claim unless a Senior Counsel (to be nominated by Us) advises that the Claim should be contested. In formulating that advice, Senior Counsel shall take into consideration the economics of the matter, the likely liability together with Defence Costs and the prospects for successfully defending the Claim. The cost of the Senior Counsel s advice shall be regarded as part of the Defence Costs. 8.7 Claims Mitigation and Co-operation The Insured must use due diligence and do and concur in doing all reasonable and practicable things in order to avoid, minimise or mitigate any liability, loss or damage that is or may be the subject of a Claim The Insured must disclose to Us honestly and frankly all relevant information, and provide all information and assistance We request to investigate and defend any Claim, to determine whether the Insured is entitled to indemnity under this Policy, or to prosecute any recovery action Compliance with clauses and shall be at the Insured s own cost unless agreed to in writing by Us. SECTION 9 DEFINITIONS 9.1 Advertising "Advertising" shall mean publicity, press releases, promotional material or promotion of any kind to promote the Insured s Multimedia and services of an Insured. 9.2 Assumed Under Contract Assumed Under Contract shall mean liability assumed by the Insured in the form of hold harmless or indemnity agreements executed with any party, but only in respect to: (a) the type of Claims falling within section 1 11 PIMML0310

14 clauses 1.1 and 1.2 and (b) Matter supplied by the Insured. Examples of Assumed Under Contract are hold harmless or indemnity agreement with advertisers, advertising agencies, publishers, broadcasting companies, and networks, cable television systems, authors and other entities distributing Matter. 9.3 Business Event Business Event shall mean actual or alleged: (a) acts committed in the usual and ordinary business operations of the Insured (including Advertising); or (b) Public Appearances; which result in Claims against the Insured, arising out of: (i) any form of unintentional defamation or other unintentional tort related to disparagement or harm to the character, reputation or feelings of any person or organisation, including libel, slander, product disparagement, trade libel, infliction of emotional distress, outrage or outrageous conduct; (ii) any form of unintentional invasion, infringement or interference with rights of privacy or publicity, including public disclosure of private facts, intrusion and commercial appropriation of name or likeness; (iii) trespass, eavesdropping or other invasion of the right of private occupancy; (iv) any form of unintentional infringement or unintentional dilution of title, slogan, trademark, trade name, trade dress, service mark or service name; (v) any form of unintentional infringement of Patent, contribution to infringement of patent or inducement of infringement of patent PROVIDED THAT our total liability for patent claims shall not exceed $250,000 inclusive of Defence Costs during the Period of Insurance; or (vi) any form of unintentional infringement of copyright, violation of Droit Moral/Moral Rights, passing-off, plagiarism, Piracy or misappropriation of ideas under implied contract. 9.4 Claim Claim shall mean: (a) in respect of Section 1 and 2, the receipt by the Insured of a demand for compensation made by a third party against the Insured. It must take the form of: (i) a writ, statement of claim, summons, application or other originating legal or arbitral process, cross claim, counterclaim or third party or similar party notice; or (ii) any other form of written or verbal notice; and where applicable (b) In respect of Section 1 only, the term Claim will also include the making by the Insured of a claim against Us under automatic extensions 1.4 (Awards by Ombudsman); 1.7 (Costs of Disciplinary Official Inquiries); 1.10 (Loss of Documents); 1.12 (Withdrawal Expenses); and optional extension 1.14 (Fidelity). 9.5 Contract Contract shall mean a written contract for the provision of services or Matter between the Insured and a consultant, contractor or agent and does not include any form of verbal agreement unless it is subsequently reduced to a formal written document and signed by the consultants, contractors or agents and the Insured PROVIDED THAT the written contract was in place prior to the happening of: (a) in the case of Section 1, the event the subject of the Claim under this Policy; or (b) in the case of Section 2, the Occurrence the subject of a Claim under the Policy. 9.6 Contextual Error or Omission Contextual Error or Omission shall mean any negligent act, error, omission, misstatement, misleading statement or misrepresentation in Matter in Insured s Media by or with permission of the Insured. 9.7 Defence Costs Defence Costs shall mean costs, charges and expenses (other than the Insured s regular or overtime wages, salaries or fees) incurred by Us or by the Insured with Our consent which shall not unreasonably be withheld, in defending, investigating or monitoring any Claim or Occurrence or proceedings and appeals in relation thereto, but shall not include any costs of the person who is 12 PIMML0310

15 making the Claim or asserting the liability against the Insured. 9.8 Director Director shall mean a person occupying or acting in the position of director of the Insured, whether or not validly appointed to occupy or duly authorised to act in the position, or a person in accordance with whose directions or instructions the Directors, Employees of Insured are accustomed to comply. 9.9 Documents Documents shall mean Documents as defined in the Acts Interpretation Act 1901 (Cth) (as amended) and includes documents of any nature whatsoever, whether written, printed or reproduced by any method including computer records and electronic data material, BUT SHALL NOT INCLUDE money, negotiable instruments, bearer bonds or coupons, stamps, bank or currency notes or any other negotiable instrument Employee Employee shall mean any person employed under a contract of service or apprenticeship 9.11 Excess Excess shall mean the excess specified in the Schedule Family Member Family Member shall mean: (a) any spouse, domestic partner or companion; (b) any parent, or parent of the spouse, domestic partner or companion; or (c) any sibling, child, adopted child or any child living with the person as if the child were a member of the person s family Insured Insured shall mean: (a) the person, persons, partnership, company, corporation, statutory authority or other entity specified in the Schedule as Insured; (b) any predecessor in business of any person or entity in (a) and (b); (c) any person who is, was, becomes or ceases to be a principal, Officer, Partner, Director or Employee of any person, persons, partnership, company, corporation, statutory authority or other entity specified in the Schedule as Insured, but in each case solely (d) (e) in respect of a liability arising from activity for and on behalf of that entity; and any person, consultant, contractor or agent (including freelancers and photographers) providing services or Matter under a Contract to the Insured and whose name or entity is specified in the Schedule or by endorsement to this Policy as an Insured, but in each case solely in respect of a liability arising from activities performed for and on behalf of the Insured. any executor, heir or trustee of any person in (a), (b), (c) or (d) Insured s Business Insured s Business shall mean the business, as described in the Schedule and in respect of Section 2 Public & Products liability includes the provision of and management of: (a) canteens, social, sports, welfare and child care facilities solely for the direct benefit of the Insured s Employees, members or guests, (b) first aid, medical, fire and ambulance services provided by the Insured, and (c) any premises which the Insured as owner, tenant or mortgagee in possession uses for that purpose in the course of the normal conduct of the Insured s Business Insured s Multimedia "Insured s Multimedia" shall mean the publications, production, broadcasts, communications or other Matter specified in the Schedule or by endorsement and related Advertising Insured s Product Insured s Products shall mean any goods developed, manufactured, sold, handled or distributed by the Insured, including any container, packaging and/or labelling thereof and any property of which such products form a part when physical possession of such goods or products has been relinquished to others, but the Insured s Products does not include a vending machine or any property rented to or located for use of others but not sold Limit of Liability Limit of Liability shall mean the maximum amount payable by Us as specified in the Schedule to this Policy. 13 PIMML0310

16 9.18 Matter Matter shall mean communicative or informational content regardless of the nature or form of such content, including content disseminated electronically and or digitally when authorised or controlled by the Insured (e.g. via websites, chat rooms, bulletin boards, databases and blogs) Moral Rights Droit Moral/Moral Rights means the creator s rights to attribution and the integrity of a work Multimedia Event Multimedia Event shall mean the actual or alleged: (a) publication, broadcast or other dissemination of Matter; (b) acts committed in the process of researching, investigating, gathering, acquiring, obtaining, preparing, compiling or producing Matter; or (c) the licensing, syndication, serialisation, distribution, sale or lease of Matter, by or with the permission of the Insured; which results in Claims against the Insured, including but not limited to Claims arising out of: (i) any form of unintentional defamation or other unintentional tort related to disparagement or harm to the character, reputation or feelings of any person or organisation, including libel, slander, product disparagement, trade libel, infliction of emotional distress, outrage, outrageous conduct or prima facie tort; (ii) any form of unintentional invasion, infringement or interference with rights of privacy or publicity, including public disclosure of private facts, intrusion and commercial appropriation of name or likeness; (iii) any form of unintentional infringement or unintentional dilution of title, slogan, trademark, trade name, trade dress, service mark or service name; (iv) any form of unintentional infringement of copyright, violation of Droit Moral/Moral Rights, passing-off, plagiarism, Piracy or misappropriation of ideas under implied contract; (v) breach of a licence to use a third party s trademarked or copyrighted Matter, but only arising from a use that unintentionally exceeds the scope of the licence with respect to the Territory, period or media in which the Matter may be used and only when alleged in conjunction with a Claim covered in (iii) or (iv) above; (vi) breach of agreement, breach of confidentiality or promissory estoppel, in connection with the failure to maintain the confidentiality of a source or materials furnished by a source or the failure to portray a source or a subject in a certain light; (vii) unintentional failure to attribute authorship or provide credit under any agreement to which an Insured is a party; (viii) wrongful entry or eviction, trespass, eavesdropping or other invasion of the right of private occupancy; (ix) false arrest, detention or imprisonment, abuse of process or malicious prosecution; (x) misuse of an intellectual property right in Matter or conspiracy, but only when alleged in conjunction with a Claim covered in (i) to (ix) above; (xi) negligent supervision of an Employee, but only when alleged in conjunction with a Claim covered in (i) to (ix) and (xii) any negligent act, error, omission, misstatement, misleading statement or misrepresentation in Matter in Insured s Multimedia. (xiii) negligent transmission of a computer virus or malicious code, or any unauthorised access to or posting on a covered website of an Insured that results in a Claim covered in (i) to (ix) or (xii) above Occurrence Occurrence shall mean an event, including continuous or repeated exposure to conditions, which result in Personal Injury or Property Damage during the Period of Insurance neither expected nor intended by the Insured. All such exposure to substantially the same general conditions will be deemed to be one Occurrence Officer, Partner Officer, Partner shall mean a person by whatever name called and whether or not a Director of the Insured, who is primarily concerned with, or takes part in the management of the Insured s Business Over-redemption Over-redemption shall mean price discounts, prizes, awards or other valuable consideration given 14 PIMML0310

17 in excess of the total contracted or expected amount Period of Insurance Period of Insurance shall mean the period specified in the Schedule. (b) loss of use of tangible property which has not been physically damaged or destroyed provided such loss of use is caused by physical damage to or destruction of other tangible property during the Period of Insurance Personal Injury Personal Injury shall mean: (a) physical injury, death, sickness, disease, disability, shock, fright, mental anguish, mental injury or loss of consortium; (b) false arrest, false imprisonment, wrongful eviction, wrongful detention or malicious prosecution; or (c) assault and/or battery not committed by the Insured or at the Insured s direction unless committed for the purpose of preventing or eliminating danger to persons or property Piracy Piracy shall mean the wrongful use, reprinting or reproduction of copyrighted intellectual property Policy Policy shall mean: (a) the insuring clauses, extensions, exclusions, conditions, definitions, Schedule and other terms contained herein; (b) any endorsement to this Policy whether issued at the inception of the Policy or during the Period of Insurance; and (c) the information provided by the Insured in the Proposal Premium Premium shall mean the premium specified in the Schedule Products Liability Products Liability shall mean the Insured s legal liability to pay compensation in respect to Personal Injury or Property Damage occurring within the Territory during the Period of Insurance as a result of an Occurrence happening in connection with the Insured s Products Property Damage Property Damage shall mean: (a) physical damage to or destruction of tangible property (which includes loss of property) including the loss of use of property damaged or destroyed; or 9.31 Proposal Proposal shall mean the written proposal by the Insured made to Us containing information and statements which, together with any other information or documents provided, are the basis of this Policy and are considered incorporated in it Public Appearance Public Appearance means: (a) public speaking including speeches, press conferences, media interviews, panel discussions and seminars and appearances on radio, television, cable television or the Internet; (b) publications in which the insured acts as, contributing author, guest or freelance writer, or publications consultant; or (c) advertisements in any medium in which the insured appears as an actor, author, announcer or endorser of any product or service, by the Insured in connection with the Insured s Business Schedule Schedule shall mean the Schedule to this Policy Territory Territory shall mean the territory specified in the Schedule to this Policy Unfair Competition "Unfair Competition" shall mean the misuse of an intellectual property right in Matter Vehicle Vehicle shall mean any type of machine on wheels or on self-laid tracks that is or is intended to be propelled by other than manual or animal power We, Our, Us We, Our or Us shall mean AXIS Specialty Europe Limited. 15 PIMML0310

18 Head Office Brisbane Melbourne Adelaide Level Clarence Street PO Box Level 9 Level 6, 459 Collins Street Melbourne VIC 3000 Offices on the Park Suite 20 Sydney NSW Adelaide Street Brisbane QLD 4000 GPO Box 5150 Melbourne VIC Greenhill Road Wayville SA 5034 Phone: (02) Phone: (07) Phone: (03) Phone: (08) Fax: (02) Fax: (07) Fax: (03) Fax: (08) AXIS Specialty Australia (AXIS), a branch of AXIS Specialty Europe Limited, ARBN , is authorised and supervised by the Australian Prudential Regulation Authority as a general insurer. AXIS Specialty Europe Limited is authorised and regulated by the Irish Financial Services Regulatory Authority.