GENERAL NOTICES. If your non-disclosure is fraudulent, the Insurer may also have the option of avoiding the contract from its beginning.

Transcription

1 XL INSURANCE COMPANY LIMITED Sydney, Australia (the Insurer ) The information contained in this section of the Policy is general information only and does not form part of the contract of insurance with XL Insurance Company Limited. The Policy terms, conditions and limitations in the rest of this document contain details of your contract of insurance. STATUTORY NOTICE GENERAL NOTICES YOUR DUTY OF DISCLOSURE - CONTRACTS OF GENERAL INSURANCE Before you enter into a contract of general insurance with an Insurer, you have a duty, under the Insurance Contracts Act 1984 (Cth), to disclose to the Insurer every matter that you know, or could reasonably be expected to know, is relevant to the Insurer s decision whether to accept the risk of the insurance and, if so, on what terms. You have the same duty to disclose those matters to the Insurer before you renew, extend, vary or reinstate a contract of general insurance. Your duty however does not require disclosure of any matter:- - that diminishes the risk to be undertaken by the Insurer; - that is of common knowledge; - that your Insurer knows or, in the ordinary course of their business, ought to know; - as to which compliance with your duty is waived by the Insurer. NON DISCLOSURE If you fail to comply with your duty of disclosure, the Insurer may be entitled to reduce their liability under the contract in respect of a claim or may cancel the contract. If your non-disclosure is fraudulent, the Insurer may also have the option of avoiding the contract from its beginning. CLAIMS MADE DURING THE POLICY PERIOD This policy provides cover on a claims made basis, which means that claims first advised to you (or made against you) during the policy period are covered, irrespective of when the incident causing the claim occurred. When you give notice in writing to the Insurer of facts that might give rise to a claim against you and you give that notice as soon as reasonably practicable after you become aware of those facts but before the cover provided by your insurance contract with the Insurer expires, the Insurer cannot refuse to cover you by reason only of the fact that the claim against you is actually made after that expiry date. OTHER IMPORTANT INFORMATION UTMOST GOOD FAITH Every insurance contract is subject to the doctrine of utmost good faith which requires that parties to the contract should act toward each other with the utmost good faith. Failure to do so on your part may prejudice any claim or the continuation of cover provided by the Insurer. NOT A RENEWABLE CONTRACT Cover under this policy will terminate at expiry of the policy period specified in your policy document. If you wish to effect similar insurance for a subsequent period, it will be necessary for you to complete a new proposal form prior to the termination of the current policy so that terms of insurance and quotation/s can then be developed for your consideration. CHANGE OF RISK OR CIRCUMSTANCES It is vital that you should advise us of any departure from your normal form of business (i.e. that which has already been conveyed to the Insurer). For example, acquisitions, changes in location or new overseas activities. PRIVACY Privacy legislation regulates the way private sector organisations collect, use, keep, secure and disclose personal information. The Insurer has developed a privacy policy which explains what type of personal information we hold about you and what the Insurer does with that information. Please contact the Insurer or your broker to obtain more information about the Insurer s privacy policy.

2 Table of Contents I. INSURING AGREEMENT... 4 II. DEFENCE COSTS AND DEFENDANT REIMBURSEMENT Defence Costs Defendant Reimbursement... 4 III. SUPPLEMENTARY COVERAGES Additional Costs Cover Bodily Injury Continuous Cover Defamation Estates and Legal Representatives Extended Reporting Period Fines and Penalties Inquiries Attendance Legal Counsel Extension Loss of Documents Mitigation Payments New Subsidiaries Pollution Public Relations Expenses Pursuit Costs... 5 IV. OPTIONAL EXTENSIONS Extended Policy Period Multiple Reinstatements... 6 V. EXCLUSIONS Asbestos Construction Contractual Liability Directors and Officers Employer Liability Express Warranties, Guarantees and Penalty Clauses Fines and Penalties Fraud and Dishonesty Insolvency / Trading Loss Insurance and Suretyship Insured versus Insured Nuclear Hazard Ownership Interest Pollution Prior Claims or Circumstances Products Liability Non-Architectural Activities Property Liability Public Liability / Employment Injury War Workers Compensation... 7 VI. LIMITS OF LIABILITY AND EXCESS Aggregate Limit of Liability Multiple/ Related Claim(s) Excess

3 VII. DEFENCE, SETTLEMENT AND COOPERATION CONDITIONS Conduct of Proceedings Co-operation Election to Contest Mitigation Notification Payment of Limit of Liability Senior Counsel Settlement of Claims... 7 VIII. NOTICE CONDITIONS... 7 IX. OTHER CONDITIONS Assignment Cancellation Change in Control Changes Choice of Law and Disputes Goods and Services Tax (GST) Multiple Causes of Loss Non-Imputation Other Insurance Rights of Third Parties Severability Sole Agent Subrogation Territory... 8 X. DEFINITIONS Aggregate Limit of Liability Bodily Injury Change in Control Claim(s) Costs Defence Costs Employee Excess Event Expert Extended Policy Period Inquiry Insured Limit of Liability Named Insured Policy Period Pollution Potential Recovery Professional Services Senior Counsel Sub-Consultant Subsidiary Wrongful Act POLICYHOLDER COMPLAINTS

4 ARCHITECTS PROFESSIONAL INDEMNITY POLICY PLEASE READ THIS POLICY CAREFULLY, INCLUDING THE SCHEDULE AND ALL ENDORSEMENTS. In consideration of the payment of the Policy Premium stated in the Schedule and in reliance upon the statements contained in the proposal form and any other supplemental materials and information submitted herewith, and subject to all the terms and conditions of this Policy, the Insurer agrees with the Named Insured as follows: I. INSURING AGREEMENT To indemnify the Insured for each and every Claim(s) first made against the Insured during the Policy Period and first reported to the Insurer, in writing, during the Policy Period or extended reporting period provided the Claim(s) is for civil liability for compensation arising from any Claim made against the Insured arising from the performance of Professional Services by the Insured (or any Sub-Consultant) after the Retroactive Date(s) stated in the Schedule including (but not limited to) civil liability: under the Competition and Consumer Act 2010 (Cth) as amended from time to time, or any Fair Trading Legislation of any State or Territory of Australia or equivalent legislation enacted in any other Australian Territory or State; for unintentional infringement of copyright, trademark, registered designs or patents; (c) for unintentional breach of confidentiality; (d) for unintentional breach of privacy II. DEFENCE COSTS AND DEFENDANT REIMBURSEMENT 1. Defence Costs The Insurer will indemnify the Insured against Defence Costs in addition to the Limit of Liability: that the Insurer incurs; or that the Insured incurs with the Insurer s written consent. If a paid Claim exceeds the Limit of Liability, the Insurer will only be liable for that proportion of the Defence Costs which the Limit of Liability bears to the amount of the paid claim. 2. Defendant Reimbursement The Insured shall attend mediations, arbitration proceedings, hearings, depositions and trial relative to the defence of a Claim(s) at the request of the Insurer. In addition to the Limit of Liability, the Insurer shall reimburse the Insured upon written request, for actual loss of earnings and reasonable expenses due to such attendance up to AUD 500 per day in the aggregate for all Insured(s) subject to a maximum amount of AUD 100,000.in.all. III. SUPPLEMENTARY COVERAGES Indemnity shall be provided under the following provisions as part of the Limit of Liability and nothing below shall increase the Limit of Liability or alter any other provisions of the Policy: 1. Additional Costs Cover The Insurer shall provide indemnity to the Insured for Costs in respect of an Event which the Insured first becomes aware of during the Policy Period and first reported to the Insurer, in writing, during the Policy Period. The maximum amount payable in the aggregate for the Policy Period under this clause shall not exceed AUD100,000 and an Excess of AUD5,000 shall be applicable. 2. Bodily Injury The Insurer shall provide indemnity to the Insured for Claims in respect to Bodily Injury only arising from any actual or alleged breach of duty in the performance of Professional Services. 3. Continuous Cover The Insurer shall provide indemnity to the Insured notwithstanding the exclusion for Prior Claims or Circumstances at Section V. 19 in respect of any Claim(s) made against the Insured where the Claim(s) arises from facts or circumstances:- which the Insured first became aware prior to the Policy Period and which the Insured knew, or ought to have reasonably known, had the potential to give rise to a Claim(s); and which should have, but were not, notified to the Insurer under an earlier policy under which the Insurer was indemnifying the Insured; provided that:- (i) the failure to notify the facts or circumstances was not a result of any fraudulent misrepresentation or fraudulent non-disclosure by the Insured; (ii) the Insurer has been the continuous Insurer between the date when the fact or circumstance should have been notified and the date the Claim(s) was actually notified; or (iii) the cover provided under this extension shall not be broader than the cover provided under the terms and conditions of the policy in force at the time the Insured first became aware of the potential Claim(s). 4. Defamation Subject to all other terms of this Policy, the Insurer shall pay all sums which the Insured shall become legally liable to pay in satisfaction of any Claim(s) first made upon them during the Policy Period arising out of any alleged defamation by the Insured in their professional capacity. 5. Estates and Legal Representatives The Insurer shall provide indemnity to any estate, legal representative, heir or assign of the Insured of any deceased or mentally incompetent Insured in respect of Claim(s) arising from the conduct of the Professional Services of the Insured. Indemnity is not provided under this extension for any actual or alleged act or omission by such estate, heirs, assignees and legal representatives. 6. Extended Reporting Period If the Policy is not renewed or replaced by the Insured with a policy or policies providing similar cover then the Insured is entitled to an extended reporting period of 30 days commencing from the end of the Policy Period during which time the Insured may notify any Claim(s) to the Insurer, provided that the notification relates to Professional Services performed prior to expiration of the Policy Period. An extended reporting period granted pursuant to this extension is non-cancellable and any additional premium paid is nonrefundable. 7. Fines and Penalties Notwithstanding the exclusion for Fines and Penalties at Section V.8., and the exclusion for Pollution at Section V.17., the Insurer shall indemnify the Insured in respect of any Claim(s) first made during the Policy Period for: penalties imposed on the Insured by a regulatory authority arising from an actual or alleged breach of any occupational health and safety or environmental legislation; and compensatory civil penalties; provided that:- (i) (ii) the action giving rise to the fine or penalty arose out of Professional Services by the Insured; and the action giving rise to the fine or penalty did not arise from gross negligence or an intentional, wilful, reckless. or deliberate act, error, or omission; and 4

5 (iii) such coverage is permissible under applicable law and regulation; and The maximum amount payable in the aggregate for the Policy Period under this clause in respect of all such fines or penalty(ies) shall not exceed AUD $100,000 unless otherwise set out in the Schedule. 8. Inquiries Attendance The Insurer shall pay reasonable legal fees resulting directly from the attendance by the Insured at an Inquiry, provided that:- the Inquiry is commissioned or ordered during the Policy Period; and the Insured(s) attendance is required due to the Insured(s) conduct of its Professional Services; and (c) the Insured is legally compelled to attend the Inquiry; and (d) written consent of the Insurer has been obtained; and The maximum amount payable for the Policy Period under this clause in the aggregate in respect of all such legal fees shall not exceed AUD 100,000 unless otherwise set out in the Schedule. 9. Legal Counsel Extension The Insured is entitled to receive a single complimentary session, not exceeding 60 minutes, of verbal advice, during the Policy Period, in relation to a matter that may be covered by this Policy, from a law firm selected by the Insurer. 10. Loss of Documents The Insurer shall pay all reasonable costs and expenses incurred by the Insured in replacing and restoring documents: (i) owned by the Insured; or (ii) for which the Insured is responsible as part of the Professional Services provided by the Insured which are discovered lost or damaged during the Policy Period. No Excess shall be applicable to any claim under this extension. 11. Mitigation Payments The Insurer will, at its option, indemnify the Insured for the following, provided that they have been incurred with the Insurer s prior written consent:- reasonable payments made to a third party identifiably impacted by a breach of professional duty arising from the performance of professional services by the Insured; and reasonable professional fees and expenses necessarily incurred by the Insured; in order to mitigate the financial consequences of a Wrongful Act that the Insured establishes would otherwise have given rise to a covered Claim under the Policy. The maximum amount payable for the Policy Period under this clause in the aggregate shall not exceed AUD $50, New Subsidiaries The Insurer shall indemnify any Subsidiary created or acquired by the Named Insured during the Policy Period provided that:- the Subsidiary has not made a claim or notification against any Professional Indemnity policy held in its name for the 5 years preceding the date of acquisition; and there will be no coverage under this Policy for Professional Services performed at any time during which the Subsidiary is not an Insured under this Policy; and (c) revenue of the newly acquired Subsidiary does not exceed 10% of the consolidated revenue of the Insured for the 12 months preceding the acquisition; and the indemnity provided only applies to those Professional Services covered by this Policy performed in accordance with the internal systems and procedures of the Named Insured. For any new Subsidiary that does not meet the above criteria, the Insurer will provide automatic cover for a period of no greater than 30 days (but not beyond the Policy Period) from the effective date of the new Subsidiary being acquired or created, provided that: (i) (ii) the Subsidiary has not made a claim or notification against any Professional Indemnity policy held in its name for the 5 year period preceding the date of acquisition; and there will be no coverage under the Policy for Professional Services performed at any time during which the Subsidiary is not an Insured under this Policy. (iii) Cover can be extended beyond 30 days by the Insured giving written notice of the acquisition or new entity together with any other information the insurer may require, acceptance by the Insured of any alterations to the p;olicy terms and conditions and payment of any additional premium 13. Pollution Notwithstanding the exclusion for Pollution at Section V.17. and subject to all other terms of this Policy, the Insured is indemnified in respect of any Claims first made during the Policy Period arising out of Pollution caused as a direct result of any breach of the professional duty of care owed by the Insured in the performance of their Professional Services, provided that such Pollution: was the direct result of a sudden specific and identifiable event occurring during entirely the Policy Period; and was not the direct result of the Insured failing to take reasonable precautions to prevent such Pollution. The maximum amount payable for the Policy Period under this clause in respect of all such Claim(s) and Defence Costs in the aggregate shall not exceed the sub limit for Pollution specified in the Schedule. 14. Public Relations Expenses The Insurer shall pay any reasonable fees, costs and expenses of a public relations consultant, the services of which are obtained for the sole purpose of protecting the Insured(s) reputation which has been brought into question as a direct result of a Claim covered by this Policy, provided that:- the Insurer has given prior written consent to retain the services of such public relations consultant; full written details outlining the circumstances surrounding the potential damage to the Insured(s) (c) reputation are provided to the Insurer; notification to the Insurer must occur within 7 days of first becoming aware the Insured(s) reputation has been brought into question; and The maximum amount payable for the Policy Period under this clause in the aggregate shall not exceed AUD 50,000 unless otherwise set out in the Schedule. 15. Pursuit Costs The Insurer shall provide indemnity to the Insured for Costs in respect of a Potential Recovery which the Insured first became aware of during the Policy Period and first reports to the Insurer, in writing, during the Policy Period. Provided that indemnity is subject to the Insured obtaining a written legal opinion from a QC of the Insurer s choosing detailing a reasonable prospect of success in pursuing the Potential Recovery, the cost of which is not covered by the Policy. Should the Insurer receive legal advice that the action will not be successful, the Insurer may elect to withdraw indemnity and cease funding any further Costs. The maximum amount payable in the aggregate for the Policy Period under this clause shall not exceed AUD100,000 and an Excess of AUD5,000 shall be applicable. IV. OPTIONAL EXTENSIONS 1. Extended Policy Period If the Insured: consolidates or merges with, or sells all or substantially all of its assets to a person(s), entity(s) or corporation; or becomes a subsidiary of another entity or corporation or becomes controlled by another entity; or (c) appoints a trustee administrator, receiver or liquidator; then the Insured may request an Extended Policy Period. 5

6 The Insured must request this Extended Policy Period in writing prior to expiration of the Policy Period. The Insurer may offer the Extended Policy Period on terms, conditions and limitations and for additional premium as the Insurer may impose at it sole discretion. Any Extended Policy Period is noncancellable by the Insured and any additional premium payable shall be nonrefundable. The purchase of an Extended Policy Period does not reinstate or otherwise increase any Limit of Liability applicable during the Policy Period. 2. Multiple Reinstatements Where the Schedule specifies a number of reinstatements or that reinstatements shall be unlimited under Item [4] of the Schedule, then in the event the Aggregate Limit of Liability under the Policy is exhausted the Aggregate Limit of Liability shall be reinstated the number of times specifed. Any reinstated Aggregate Limit of Liability shall not apply to any Claim, arising out of or in any way connected to a Claim for which there has been any prior payment by the Insurer. Any reinstated Limit of Liability shall be excess of all other insurance policies excess of this policy, Defence Costs shall be part of and not in addition to a reinstated Aggregate Limit of Liability and payment by the Insurer of such Defence Costs shall reduce the reinstated Aggregate Limit of Liability accordingly V. EXCLUSIONS This Policy does not apply to any claim under Section III. 6. or any other Claim(s) arising out of or connected with: 1. Asbestos asbestos; or any materials containing asbestos in whatever form or quantity. 2. Construction actual construction performed by the Insured, its agent, or its subcontractor, including, but not limited to, performing construction, erection, fabrication, installation, assembly, manufacture, maintenance, demolition, dismantling, drilling, excavation, dredging, remediation, or supplying any materials, parts, or equipment, except for supplying furnishings as a part of interior design services; the supervision by the Insured, its agent, or its subcontractor, including, but not limited to the physical act of construction, erection, fabrication, installation, assembly, manufacture, maintenance, demolition, dismantling, drilling, excavation, dredging or remediation. This exclusion does not apply to drilling, excavation, or other sampling or testing procedures necessary for the Insured to perform its Professional Services. 3. Contractual Liability any duty, obligation or liability assumed by the Insured under any contract or agreement. This exclusion does not apply to any duty, obligation or liability that would attach to the Insured in the absence of such contract or agreement. 4. Directors and Officers liability as a Director, Officer, and/or Trustee in their respective capacities. 5. Employer Liability the Insured(s) employment obligations, decisions, practices or policies as an employer, including but not limited to, any Claim(s) based upon or arising out of actual or alleged discrimination or other act, error or omission by the Insured against the Insured s Employees. 6. Express Warranties, Guarantees and Penalty Clauses express warranties (including collateral warranties) and guarantees or penalty clauses or liquidated damages clauses. However, this exclusion does not apply to a warranty or guarantee by the Insured that the Insured(s) Professional Services are in conformity with the normal standard of care applicable to those Professional Services. 7. Fines and Penalties any fines or penalties imposed by law; or any punitive, aggravated, multiple or exemplary damages. 8. Fraud and Dishonesty any deliberately dishonest, deliberately fraudulent or deliberate criminal act or any wilful violation of any statute, rule or law by any Insured. However, this exclusion shall not apply with respect to each and every Insured who is an individual and who did not personally commit or participate in committing or acquiesce in or remain passive after they knew or should have known of any of the dishonest, intentional, fraudulent or malicious or knowingly Wrongful Acts, errors, or omissions described above. 9. Insolvency / Trading Loss the insolvency, receivership, administration, bankruptcy or liquidation of the Insured or any party involved in any project; or any trading loss or trading debt incurred by the Insured. 10. Insurance and Suretyship the advising or requiring of, or failure to advise or require or failure to maintain any form of insurance, suretyship or bond, either with respect to the Insured or any other person, entity or Insurer. 11. Insured versus Insured a Claim made by any Insured against any other Insured, or made by a Subsidiary against any other Subsidiary or Insured. 12. Nuclear Hazard the actual, alleged or threatened exposure to nuclear source material, nuclear by-product materials, nuclear waste activities, nuclear incident, or extraordinary nuclear occurrence. 13. Ownership Interest a Claim against an Insured by: an entity in which that Insured maintains a cumulative ownership interest of ten percent (20%) or more; or an entity that maintains any ownership interest in that Insured. 14. Pollution Pollution in any form. 15. Prior Claims or Circumstances a Claim first made or threatened against the Insured prior to the commencement of the Policy Period; any Wrongful Act or other act or omission giving rise to coverage under this Policy that occurred before the retroactive date specified in the Schedule; (c) facts or circumstances which were: (i) known to the Insured prior to the inception of the Policy Period and which the Insured knew or reasonably ought to have known might give rise to a Claim or Defence Costs; or (ii) notified, or which ought reasonably to have been notified under any insurance that was in force prior to the inception of the Policy Period; or (iii) noted on the proposal form for the current Policy Period or any previous proposal form. 16. Products Liability the sale or distribution of any product developed by the Insured or by others under license or trade name from the Insured for multiple sale or mass distribution, including, but not limited to, computer programs and software. This exclusion does not apply to software designed or modified for an individual client of the Insured in connection with the Insured(s) rendering of Professional Services for that individual client. 6

7 17. Non-Architectural Activities any estimate of probable construction cost or cost estimates having been exceeded except where such estimates are compiled by a qualified quantity surveyor or other suitably qualified professional; any loss or damage which would normally be the responsibility of the building contractor; (c) advice on financial or tax matters; or (d) or negligence related to the provision of finance. 18. Property Liability the Insured(s) ownership, rental, lease, maintenance, operation, use, repair, voluntary or involuntary sale, transfer, exchange, gift, abandonment or condemnation of any real or personal property. Personal property, includes, but is not limited to, automobiles, aircraft, watercraft and other kinds of conveyances. 19. Public Liability / Employment Injury Bodily Injury unless arising from any actual or alleged breach of duty in the performance of Professional Services. 20. War war invasion act of foreign enemy hostilities, (whether war be declared or not) or acts of terrorism civil war rebellion revolution insurrection or military or usurped power. 21. Workers Compensation any worker s compensation, unemployment compensation or disability benefits law or similar law. VI. LIMITS OF LIABILITY AND EXCESS 1. Aggregate Limit of Liability Subject always to any lesser sub limit referred to in the Schedule or in this Policy the liability of the Insurer for the sum of all payments made under this Policy shall not exceed the Aggregate Limit of Liability stated in the Schedule, or if the Insurer has agreed to provide reinstatements, for each such reinstatement. 2. Multiple/ Related Claim(s) One or more Claim(s) originating from the same cause ( Related Claim(s) ) will be treated as a single Claim. Further, the making of Related Claim(s) against more than one Insured and/or by more than one person shall not operate to increase the Insurer s Limit of Liability and in such circumstances, only one Limit of Liability and one Excess shall apply for all such Related Claim(s), subject always to any lesser Limit of Liability as expressly set out in this Policy. 3. Excess The Insured must pay the Excess for Claim(s) and associated Defence Costs before the Insurer is obligated to pay. Any Defence Costs incurred by the Insurer to determine indemnity under the Policy shall not be subject to the Excess but shall be borne by the Insurer. Furthermore, the Excess for each single Claim is the most the Insured must pay in respect to a Claim(s) and any associated Defence Costs. VII. DEFENCE, SETTLEMENT AND COOPERATION CONDITIONS 1. Conduct of Proceedings The Insurer may elect at any time to take over and conduct in the name of the Insured any proceedings and shall have full discretion in the conduct of same. 2. Co-operation The Insured must provide all relevant information and assistance that the Insurers or its agents reasonably require in connection with a Claim and co-operate fully with Insurers and its investigators and legal representatives in any proceedings in relation to which the Insurer is or may be liable to indemnify the Insured under this Policy all without charge to the Insurer, except as may be provided elsewhere in this Policy. 3. Election to Contest If the Insurer recommends settlement in respect of any Claim and the Insured does not agree to settlement, the Insured may elect to contest the Claim. However, the Insurer s liability in connection with the Claim is then limited to the amount the Insurer recommends in settlement plus Defence Costs incurred with the Insurer s consent up to the date the Insurer recommends settlement to the Insured. 4. Mitigation The Insured must use all reasonable endeavours and do and concur in doing all things reasonably practicable to avoid or diminish any liability, Defence Costs or loss in respect of which the Insurer is or may be liable to indemnify the Insured under his Policy. 5. Notification The Insured must notify the Insurers in writing of any Claim made against the Insured during the Policy Period as soon as practicable and no later than the end of the Policy Period. 6. Payment of Limit of Liability The Insurer may at any time in connection with any Claim pay to the Insured the Limit of Liability (after deduction of any sums already paid and the Excess) or any lesser sum for which, in the Insurer s sole opinion, the Claim can be settled and upon such payment being made the Insurer shall relinquish the conduct and control of, and have no further liability in connection or arising out of the Claim. 7. Senior Counsel Neither the Insurer nor the Insured may require the other to contest any Claim unless Senior Counsel advises that the Claim should be contested. In formulating his or her advice, Senior Counsel must take into consideration the damages and costs which are likely to be recovered by the plaintiff, the likely Defence Costs and the Insured s prospects of successfully defending the Claim. If the nomination of Senior Counsel cannot be agreed within a reasonable time, Senior Counsel will be such person as the President of the New South Wales Bar Association appoints. The cost of Senior Counsel s opinion will form part of Defence Costs. 8. Settlement of Claims The Insured shall not make any payment, admit liability, settle any Claim(s), assume any obligation or incur any expense without the prior written consent of the Insurer. However, the Insurer must not withhold consent unreasonably. VIII. NOTICE CONDITIONS 1. In the event of a Claim(s), or if the Insured wishes to claim under Sections III. 6 or 8, written notice containing particulars sufficient to identify the relevant Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of all available witnesses, shall be given immediately by or for the Insured to the Insurer, and in any event, during the Policy Period or within 7 days of the end of the Policy Period. 2. Notification is to be made in writing to the Insurer at the following address: XL Insurance Company Limited Professional Claims Department, 1 Margaret Street Sydney NSW If a Claim(s) is made against the Insured, the Insured shall immediately forward to the Insurer every demand, notice, summons, order or other process received by the Insured or the Insured(s) representative. This requirement continues throughout the life of the Claim(s). 4. It is agreed that the Insurer shall be entitled to pursue legal, arbitration or other proceedings in the name and on behalf of the Insured to challenge, appeal, open up or amend any decision, direction, award or the exercise of any power of the Adjudicator or 7

8 stay the enforcement of any decision, direction, award or exercise of any power of the Adjudicator. The Insured shall give all such assistance as the Insurer may reasonably require in relation to such proceedings. For the avoidance of doubt this clause does not in any way limit the Insurer s rights of subrogation. IX. OTHER CONDITIONS 1. Assignment This Policy cannot be assigned or transferred without written consent of the Insurer. 2. Cancellation Insured s right to cancel the Policy The Insured may cancel this Policy at any time by notifying the Insurer in writing. On cancellation by the Insured, the Insurer agrees to refund the Named Insured a pro rata proportion of the Premium from the date the insurer receives the request to cancel less 15%, based upon the unexpired portion of the Policy Period unless the Insured has made any notification of a Claim or facts of circumstances that may give rise to a Claim under this Policy, in which case the premium will be deemed fully earned and no refund will be due. Insurers right to cancel the Policy The Insurer may cancel this Policy in accordance with Section 60 of the Insurance Contracts Act 1984 (C wealth). On cancellation by the Insurer, the Insurer agrees to refund the Named Insured a pro rata proportion of the Premium, based upon the unexpired portion of the Policy Period. 3. Change in Control If a Change in Control occurs during the Policy Period, the Policy will continue to provide cover for Professional Services performed prior to the effective date of the Change in Control. 4. Changes Notice to any agent or knowledge possessed by any agent or by any other person acting on behalf of the Insurer shall not effect a waiver or a change in any part of this Policy or stop the Insurer from asserting any rights under the terms of this Policy; nor shall the terms of this Policy be waived or changed, except by endorsement issued to form a part of this Policy. submitted to the exclusive jurisdiction of the courts of New South Wales, Australia. 6. Goods and Services Tax (GST) The amount of GST that the Insurer is liable to pay under this Policy will be reduced by the amount of any input tax credit that the Insured is entitled to claim for. The Insurer will not indemnify the Insured for any GST liability, fine or penalty that may arise from or is attributable to the Insured(s) failure to notify the Insurer of the Insured(s) entitlement (or correct entitlement) to an input tax credit on the premium. If the Insured is liable to pay an Excess on this Policy, the amount payable will be calculated after deduction of any input tax credit that the Insured may be entitled to claim on payment of the Excess. The Insured should seek professional advice if there are any queries about GST and how it is applied to insurance. 7. Multiple Causes of Loss In the event that there are a number of causes which contribute to the liability of the Insured for which a Claim is made, the Insurer will indemnify the Insured in respect of that part of the Insured s liability which is covered under the Policy irrespective of whether one or more of the other causes is excluded under the Policy. 8. Non-Imputation For the purposes of determining the availability of cover under the Policy the conduct of one Insured shall not be imputed to any other Insured, provided that cover is only provided to an Insured who is innocent of and has no prior knowledge of such conduct. 9. Other Insurance All Claim(s) payable under this Policy will be specifically excess of and will not contribute with any other insurance or indemnity, unless such other insurance is specifically excess of this Policy (to the extent to which it is permitted by the insurance Contracts Act 1984, as amended). This Policy will not be subject to the terms of any other insurance policy. 10. Rights of Third Parties It is hereby agreed that no party not a party to this Policy shall derive any rights from it. 11. Severability In the event that an Insured has: (c) failed to comply with any terms of conditions of this Policy; the Insurer agrees that such failure or misrepresentation shall not prejudice the right of any other Insured(s) to indemnity under this Policy, provided always that such other Insured(s) have: (i) (ii) 12. Sole Agent been entirely innocent of and have had no prior knowledge of such failure or misrepresentation; and advised the Insurer in writing as soon as reasonably practicable upon becoming aware of such failure or misrepresentation. Only the first Named Insured stated in the Schedule shall act on behalf of all Insured(s) for the payment or return of premium, receipt and acceptance of any endorsement issued to form a part of this Policy, notifying the Insurer of Claim(s) or facts or circumstances, giving and receiving notice of cancellation or non-renewal, the payment of any Excess. 13. Subrogation In the event that the Insurer makes a payment under this Policy, the Insurer is subrogated to all of the Insured(s) rights of contribution, indemnity or recovery. The Insured must always act to secure and preserve its rights of contribution, indemnity and recovery, and must do all things and execute all Documents to enable the Insurer to sue in the Insured s name for such contribution, indemnity or recovery. Any amounts recovered by the Insurer in excess of the Insurer s total payment to the Insured (including Defence Costs) shall be restored to the Insured less the costs to the Insurer of such recovery. 14. Territory This Policy applies to Claim(s) arising out of Professional Services rendered anywhere in the world but does not apply to Claim(s) relating to civil liability pursuant to the laws of the United States of America or Canada or arising out of legal proceedings commenced in the United States of America or Canada, unless otherwise stated in the Schedule. 5. Choice of Law and Disputes This Policy shall be interpreted in accordance with the law of New South Wales, Australia. All disputes relating to this Policy shall be failed to comply with the duty of disclosure in terms of the Insurance Contracts Act 1984; or made a misrepresentation to the Insurer before this Policy incepted; or 8

9 X. DEFINITIONS 1. Aggregate Limit of Liability shall mean the maximum amount as stated in the Schedule which the Insurer will pay under the Policy. 2. Bodily Injury means bodily injury, mental injury, mental anguish, nervous shock, emotional distress, sickness, or disease sustained by any person, including death resulting.therefrom. 3. Change in Control means the Named Insured sells all or substantially all of its assets to a person, entity or group of persons or entities acting in concert; or the merger or consolidation of the Named Insured with another person, entity or group of persons or entities acting in concert such that the Named Insured is not the surviving entity, including a merger which results in a change in control of the Named Insured, as control is defined in Section 50AA of the Corporations Act 2001 as amended; or (c) a trustee, administrator, receiver or liguidator including any provisional liquidator is appointed to the Named Insured. 4. Claim(s) means any written demand for compensation received from a third party and made against the Insured; or in relation to Section III 5., any written demand by a regulatory authority which may result in the Insurer providing an indemnity under that section. The definition of Claim(s) shall include, but not necessarily be limited to any writ, lawsuit, statement of claim, summons, application or arbitral process, cross-claim, counterclaim or third or similar party notice filed or made against the Insured. 5. Costs means all necessary and reasonable costs and expenses incurred by the Insured, with the Insurer s prior written consent, in connection with an Event or Potential Recovery. Costs do not cover the Insured s own expenses, time and incurred professional fees. 6. Defence Costs means reasonable costs, charges, fees (including legal counsels fees and Experts fees) and expenses incurred in defending, investigating or monitoring a Claim and costs of appeal. Defence Costs do not include the time and expense incurred by the Insured in assisting in resolving a Claim(s), including but not limited to the costs of the Insured s in-house counsel. 7. Employee means any person:- employed under a contract of service or apprenticeship; and who is a deemed a worker under the workers compensation laws of the State or Territory of Australia in which the contractor or consultant is performing Professional Services for and on behalf of the Insured during or prior to commencement of the Policy Period. 8. Excess shall mean the amount shown as the excess in the Schedule payable by the Insured. 9. Event means any allegation that the Insured has breached a written contract in or a statutory duty or obligation in the performance of their Professional Services 10. Expert means an appropriately qualified industry expert to be mutually agreed upon by the Insurer and the Insured or, in the absence of agreement, to be appointed by the current President of: Australian Architecture Association; or Australian Institute of Architecture; or (c) Association of Consulting Architects Australia; or (d) The Australian Institute of Project Management. 11. Extended Policy Period means a period of up to 84 months commencing from the expiration of the Policy Period during which time the Insured may notify any Claim(s) to the Insurer provided the Claim(s) directly results from Professional Services performed prior to the expiration of the Policy Period, and indemnity will be provided in accordance with the terms of this Policy by the Insurer as if such Claim was notified during the Policy Period. 12. Inquiry means an investigation, examination or inquiry of a disciplinary committee of any association or professional body of which the Insured is a member and/or investigations, examinations or inquiries conducted by a regulatory authority 13. Insured shall mean each of the following: the Named Insured and its Subsidiaries; and any past, present or future director, partner or Employee of the Named Insured or its Subsidiaries but only in relation to Professional Services performed for or on behalf of the Named Insured or its Subsidiaries whilst they are a director, partner or Employee of the Named Insured or its Subsidiaries. 14. Limit of Liability (except where expressly stated otherwise) shall mean the maximum amount as stated in the Schedule which the Insurer will pay in respect of any one Claim(s). 15. Named Insured means the individual, partnership, corporation, or other entity named as such in the Schedule, 16. Policy Period means the period from the effective date of this Policy to the Policy expiration date as stated in the Schedule or its earlier termination date, if any. 17. Pollution shall mean the discharge, disposal, dispersal, release or escape of any solid, liquid, gaseous or thermal irritant or contaminant including, but not limited to, smoke, vapours, soot, dust, fibres, viruses, bacteria, fumes, acids, alkalis, chemicals and waste (including, but not limited to material to be recycled, reconditioned or reclaimed). 18. Potential Recovery means any cause of action which could give rise to the Insured instituting legal action: for compensation that arises out of ownership or possession of property by the Insured in the performance of their Professional Services. Provided always that no cover is provided in respect of disputes relating to rental agreements of whatsoever nature; or to recover outstanding fees due to the Insured via written contract, entered in to between the Insured and a third party client for the provision of Professional Services. Potential Recovery does not include: (i) any dispute relating to the payment of any tax or government levy; or (ii) anything directly or indirectly arising out of personal or bodily injury; or (iii) any dispute directly or indirectly related to any fine or penalty imposed by a regulatory authority; or (iv) any dispute between the Insured and a Sub-Consultant 19. Professional Services means those of an Architect including draftsmen, Landscape Architect, Town Planner, Interior Designer, Construction or Project Manager. 20. Senior Counsel means a practising barrister who is entitled to practise as a Queens Counsel or Senior Counsel in Australia 21. Sub-Consultant means any specialist subconsultant, sub-contractor or agent acting on behalf of the Insured, under a written agreement with the Insured and for whom the Insured is legally liable, provided always that any such Sub-Consultant is appropriately qualified to perform the service and the Insured has taken all reasonable steps to ensure that such Sub- Consultant maintains its own Professional Indemnity insurance. 22. Subsidiary means: any company which according to the laws of the Commonwealth of Australia or the Australian State or Territory was or is a subsidiary of the Named Insured prior to or at the commencement of the Policy Period; any company whose accounts are consolidated with the annual accounts of the Insured in accordance with relevant current Australian accounting standards; (c) any company which the Insured, directly or through one or more subsidiary(ies): 9

10 (i) owns more than fifty percent (50%) of the issued and outstanding securities; and/or (ii) controls more than fifty percent (50%) of the voting rights, (d) any company which has been declared or notified to the Insurer. The cover provided by this Policy in respect of any such company applies only in respect of Professional Services performed whilst the company was or is a Subsidiary of the Named Insured and the relevant Subsidiary has been disclosed on the proposal form. 23. Wrongful Act means any actual or alleged act, error or omission in the performance of or failure to perform Professional Services by any Insured. POLICYHOLDER COMPLAINTS General Insurance Code of Practice XL Insurance Company Limited - Australia Branch supports and has adopted the General Insurance Code of Practice. The Code aims to: Promote more informed relations between insurers and their customers; Improve customer confidence in the general insurance industry; Provide better mechanisms for the resolution of complaints and disputes between insurers and their customers; and Commit insurers and the professionals they rely upon to higher standards of customer service. The Code confirms details of the policies specifically covered by the Code and it may be that your policy is an excluded policy and therefore outside the requirements of the Code IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed and, if required by law, this Policy shall not be valid unless countersigned by a duly authorised representative of the Insurer. 10