Allianz Professional Indemnity Insurance Construction Projects

Transcription

1 Allianz Global Corporate & Specialty Pacific Allianz Professional Indemnity Insurance Construction Projects Policy Wording

2 Table of Contents GENERAL INFORMATION... 4 POLICY WORDING... 7 INSURING CLAUSES... 7 CIVIL LIABILITY... 7 INQUIRY COSTS... 7 INSURING CLAUSE CLARIFICATIONS... 7 DEFAMATION... 7 BREACH OF PRIVACY... 7 INTELLECTUAL PROPERTY... 7 LOSS OF DOCUMENTS... 7 MISLEADING OR DECEPTIVE CONDUCT... 8 VICARIOUS LIABILITY... 8 EXTENSIONS... 8 ADMINISTRATORS AND EXECUTORS... 8 ADVANCEMENT OF DEFENCE COSTS... 8 AGREEMENTS TO CONTRACT OUT OF LIMITATION OF LIABILITY... 8 ASBESTOS... 8 AUTOMATIC COVER FOR NEW SUBSIDIARIES... 9 COLLATERAL WARRANTIES... 9 COURT ATTENDANCE... 9 DEEMED EMPLOYEES... 9 DOMESTIC PARTNERS EMERGENCY COSTS ADVANCEMENT FRAUD AND DISHONESTY IMPLIED WARRANTIES AND CONDITIONS MITIGATION COSTS Page 1

3 PANEL SOLICITORS POLLUTION PRINCIPAL S INDEMNITY PUBLIC RELATIONS EXPENSES RUN-OFF AFTER TRANSACTION SEVERABILITY AND NON-IMPUTATION OPTIONAL EXTENSIONS NOVATION AGREEMENTS DEFINITIONS EXCLUSIONS ANTICOMPETITIVE CONDUCT ASBESTOS BODILY INJURY/ PROPERTY DAMAGE CONDUCT CONTRACTUAL LIABILITY / GUARANTEE OR WARRANTY COST ESTIMATES EMPLOYER S INDEMNITY EMPLOYMENT PRACTICES LIABILITY INSOLVENCY INSURED V INSURED INTELLECTUAL PROPERTY MANUFACTURING DEFECTS OCCUPIER S LIABILITY POLLUTION PROJECT MANAGEMENT RETROACTIVE DATE PRIOR CLAIMS / CIRCUMSTANCES TRADING DEBTS Page 2

4 USA JURISDICTION CLAIMS VEHICLES WAR AND TERRORISM 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 LIMIT AND RETENTION LIMIT OF LIABILITY OTHER INSURANCE / INDEMNIFICATION RETENTION POLICY ADMINISTRATION Page 3

5 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). 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 Page 4

6 covered for Claims made against you after the expiry of the period of insurance. 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 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 Page 5

7 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 in Australia or overseas. The countries this information may be disclosed to will vary from time to time, but may include Canada, Germany, New 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. Your personal information may be disclosed to other companies in the Allianz Group, business partners, reinsurers and service providers that may be located Page 6

8 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. 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, copyright and analogous rights. 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. Page 7

9 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. Agreements to contract out of limitation of liability The Contractual Liability / Guarantee or Warranty Exclusion shall not apply to a liability assumed under a contract or agreement by reason of the Insured having contracted out of the operation of proportionate liability legislation, or any capped liability scheme that would otherwise limit the Insured's liability. No cover is provided under this Extension in respect of any Claim or Inquiry based on, arising out of, related or attributable to facts or conduct which any Insured knew, or ought reasonably to have known, might give rise to a Claim or Inquiry prior to the contract or agreement being entered into. Asbestos Notwithstanding the Pollution Exclusion, and subject to the Asbestos Exclusion, the Insurer will pay to or on behalf of any Insured all Loss resulting from any Claim in connection with, based upon or attributable to the presence or release of asbestos containing materials in whatever form or quantity. Cover under this extension shall not exceed $10,000,000, or the Limit of Liability, whichever is the lesser, and shall be part of and not in addition to the Limit of Liability. Page 8

10 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 (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. Collateral Warranties The Insurer will pay on behalf of any Insured all Loss resulting from any Claim for Civil Liability arising from any collateral warranties or similar agreements provided by an Insured, but only to the extent that the benefits of such warranties or agreements are not greater or longer lasting than those given to the party with whom the Insured originally contracted to provide Professional Services, and only to the extent that such liability would have attached to the Insured in the absence of such contractual warranty, or agreement. 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. Deemed employees The definition of Employee is extended to include a contractor or consultant who: (i) has an oral or written contract with the Policyholder or any Subsidiary to perform Professional Services for and on behalf of the Policyholder or any Subsidiary; and (ii) is a deemed worker under the workers compensation laws of the Australian State or Territory in which the contractor or consultant is performing the Professional Services. Page 9

11 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. 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. 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. Implied Warranties and Conditions Notwithstanding the Contractual Liability / Guarantee or Warranty Exclusion the Insurer will indemnify the Insured against Civil liability the Insured incurs in respect of a Claim alleging breach of warranty or condition as to merchantable quality, due skill and care or fitness for purpose implied in a contract under common law or under the terms of the Competition & Consumer Act 2010 (Cth), or any similar Fair Trading legislation of any State or Territory of the Commonwealth of Australia. Mitigation costs The Insurer shall indemnify the Policyholder for Claim Prevention Costs and Expenses. 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. Page 10

12 Pollution Notwithstanding the Pollution Exclusion, the Insurer will pay on behalf of any Insured all Loss resulting from any Claim for Civil Liability relating to the sudden or accidental discharge, dispersal, release, migration or escape of Pollutants other than asbestos, nuclear or radioactive material of any sort. Principal s indemnity The Insurer will pay on behalf of the Principal all Loss resulting from any Claim made against it as a result of an act, error, omission or other conduct of the Insured. Principal is the entity nominated by endorsement to this 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 the Policyholder may notify Claims before the end of the Policy Period first made against an Insured that arise from acts, errors, omissions or other conduct occurring prior to the date of such Transaction. If cover is so extended, the Extension for Automatic Cover for New Subsidiaries is 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). 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. Page 11

13 Optional extensions Novation agreements The Contractual Liability / Guarantee or Warranty Exclusion shall not apply to a liability which the Policyholder has assumed pursuant to a Novation Agreement in respect of Professional Services previously performed by a third party, provided that: (i) the Contractual Liability / Guarantee or Warranty Exclusion would not have applied had the Insured performed the Professional Services in the absence of such Novation Agreement; and (ii) no cover is provided under this Extension in respect of any Claim or Inquiry based on, arising out of, related or attributable to any facts or conduct which any Insured knew, or ought reasonably to have known, might give rise to a Claim or Inquiry prior to such Novation Agreement being entered into. 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 Page 12

14 (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. 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. Insured does not mean or include any contractor or any External Administrator or external auditor of the Policyholder. Page 13

15 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) Legal Representation Costs; (iv) Public Relations Expenses; (v) Claim Prevention Costs and Expenses. 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; (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. 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 Page 14

16 (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. Novation Agreement means any deed of novation or agreement specified by endorsement to the policy. Policy Period means the period of time specified as such in the Schedule. Policyholder means the organisation or natural person(s) specified in the Schedule. 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 one or more of the following services in relation to the Project: (i) design, including advice in relation to design, in accordance with all relevant laws, regulations and industry codes of practice; (ii) drafting; (iii) technical calculation; (iv) technical specification; (v) feasibility studies; (vi) programming and time flow management; (vii) quantity surveying; (viii) surveying; (ix) technical advice; (x) inspection; (xi) project management or construction management ; and (xii) training in respect of (i) to (xi) above, provided always that such Professional Services are performed only by, or under the direct supervision of, a Properly Qualified Person. Professional Services does not mean performance or supervision of any physical construction, installation, fabrication, maintenance, erection or other work processes where such performance or supervision would normally be undertaken by a construction, engineering, or maintenance contractor. Principal means the entity specified in the Schedule. Project means the project specified in the Schedule. Page 15

17 Properly Qualified Person means any Employee or Officer properly registered with the appropriate professional body as an architect, engineer, surveyor or quantity surveyor or having equivalent professional qualifications according to an established discipline more appropriate to the Professional Services being performed or supervised. 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) overheads, staff remuneration or management time of any Insured; (ii) compensation or other payments made to customers, clients or potential claimants; (iii) fines or penalties; or (iv) 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; (iv) the same act, error, omission or other conduct; or (v) any continuous or related acts, errors, omissions or other conduct. 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 Page 16

18 (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. 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. Asbestos In respect of any Claim or Inquiry arising out of, based upon or attributable to: i). physical injury, sickness, disease or death resulting from the presence or release or possible release of asbestos or asbestos containing materials in whatever form or quantity; or ii). any asbestos inspection carried out by or on behalf of an Insured. 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 (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. 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. Page 17

19 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; except to the extent such liability would have attached to the Insured in the absence of such contract or agreement. Cost Estimates In respect of any Claim or Inquiry arising out of, based upon or attributable to any estimate of construction cost or cost estimate being exceeded, unless such estimates are compiled by a qualified quantity surveyor properly registered with the appropriate professional body. 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. 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. Insolvency In respect of any Claim or Inquiry arising out of, based upon or attributable to the insolvency, liquidation, administration or receivership of an Insured. 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. Intellectual property In respect of any Claim or Inquiry arising out of, based upon or attributable to the breach of any patent. Page 18

20 Manufacturing defects In respect of any Claim or Inquiry arising out of, based upon or attributable to any defect in any product or good unless such Loss arises from the performance of Professional Services. 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 (ii) respond to or assess the effects of Pollutants. Project Management In respect of any Claim or Inquiry arising out of, based upon or attributable to: (i) any failure by any Insured or other party acting for the Insured to procure or maintain financing on a project; (ii) any failure by any Insured or other party acting for the Insured to effect or maintain any form of insurance, surety or bond on a project; (iii) the insolvency of any party to a project. 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. 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. 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. Page 19

21 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. 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: agcs.fl.claims@allianz.com.au 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. Page 20

22 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. 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, Page 21

23 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. 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 only in the event of cancellation of the Project, 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. Page 22