EXCESS LIABILITY POLICY

Transcription

1 ACE European Group Ltd. 2 nd Floor, 5 George s Dock, International Financial Services Centre, Dublin tel fax ACE European Group Limited trading as ACE Europe and Combined Insurance is authorised and regulated by the Prudential Regulation Authority in the United Kingdom and is regulated by the Central Bank of Ireland for conduct of business rules. EXCESS LIABILITY POLICY In consideration of the Insured, carrying on the Business described in the Schedule and no other for the purposes of this insurance, paying the Premium to ACE EUROPEAN GROUP LIMITED (hereinafter called the Company ) and having made a Proposal The Company agrees subject to the same terms and exclusions and conditions (except as regards the premium, settlements and limit/s of liability) as the Primary Policy specified in the Schedule and the terms limits exclusions and conditions contained herein or endorsed hereon to indemnify the Insured against all sums which the Insured shall become legally liable to pay as damages in excess of the Underlying Limit stated in the Schedule in respect of claims first made against the Insured during the Period of Insurance and arising in connection with the Business. The liability of the Company under this Policy for all damages payable a) as a result of any claim or series of claims arising directly or indirectly from one source or original cause shall not exceed the Limit of Liability stated in the Schedule b) in respect of Products for all claims made against the Insured during any one Period of Insurance shall not exceed the Limit of Liability stated in the Schedule c) as a result of all pollution and contamination which is deemed to have occurred during any one Period of Insurance shall not exceed in the aggregate the Limit of Liability stated in the Schedule. The Company will also pay in respect of any occurrence to which this Policy applies a) costs and expenses recoverable by any claimant from the Insured b) costs and expenses incurred by the Company or by the Insured with the consent of the Company, apportioned in accordance with Condition 4. In the event that the Underlying Limit applies to either or both categories of costs and expenses as well as damages, the Limit of Liability under this Policy shall apply in the same way PROVIDED ALWAYS THAT 1. the Primary Policy (and any Underlying Excess Policy/ies) shall be maintained in full effect during the currency of this Policy except for any reduction(s) of the aggregate limit or limits contained therein solely by payment of claims during the Period of Insurance 2. no liability shall attach to the Company unless and until the insurers of the Primary Policy (and any Underlying Excess Policy/ies) have paid or have been held liable to pay the full amount of the Underlying Limit (after making deductions for all recoveries salvages and other valid and collectable insurances) as specified in the Schedule 3. this Policy does not apply in respect of liability arising from occurrences happening prior to the Retroactive Date specified in the Underlying Policy/ies. SIGNED for and on behalf of the Company Jim Duncan Country Manager - Ireland This Policy together with its Schedule and any attached endorsements is a legal contract which shall constitute the entire contract between the parties, and should be examined and if incorrect returned immediately for alteration

2 Conditions Interpretation 1. This Policy and the Schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear such meaning wherever it may appear. Alteration 2. No amendment to the Primary Policy or any Underlying Excess Policy making any changes in its terms or conditions shall apply to this Policy until agreed in writing by the Company. Defence 3. The Company shall not be called upon to assume charge of the investigation or defence of any claim made or suits brought or proceedings instituted against the Insured but shall have the right and be given the opportunity to be associated in the defence of and/or trial involving any such claims suits or proceedings relative to any occurrence which in the opinion of the Company may create liability on the part of the Company under the terms of this Policy. If the Company avails itself of such right and opportunity the Company shall do so at its own expense. Apportionment of Costs 4. Costs and expenses incurred by or on behalf of the Insured with the written consent of the Company shall be apportioned as follows Partial or Total Exhaustion 4.1 should settlement of any claim or claims become practicable prior to the commencement of trial for not more than the Underlying Limit in respect of damages, or in respect of damages and costs and expenses to the extent that the Underlying Limit applies thereto, then no costs and expenses shall be payable by the Company 4.2 should however the amount for which the said claim or claims could be so settled exceed the Underlying Limit then the Company if it consents to the proceedings continuing shall contribute to the costs and expenses incurred by or on behalf of the Insured in the ratio that its proportion of the total claim or claims finally paid bears to the whole amount of such total claim or claims paid 4.3 in respect of the costs and expenses not recoverable under any Underlying Policy/ies due to the insurers thereof having made a payment equal to their total limits of liability the Company shall if it consents to the proceedings continuing be liable for that proportion of such costs and expenses for which such insurers would have been liable had they not invoked that right. Part 4.2 of this Condition does not apply if the Limit of Liability applies to costs and expenses as well as damages. 5. If by reason of the payment of any claim or claims under any Underlying Policy/ies during the Period of Insurance the aggregate of the limit or limits of liability provided by any such Underlying Policy/ies is 5.1 partially reduced then in that respect this Policy shall apply in excess of the reduced amount of the Underlying Policy/ies for the remainder of the Period of Insurance 5.2 totally exhausted then in that respect this Policy shall continue in force as the Primary Policy until expiry hereof Provided that this Policy shall not become excess of any reduced or exhausted underlying aggregate limit of liability or aggregate self-insured retention to the extent that such reduction or exhaustion is the result of any liability of a type excluded by this Policy.

3 Nuclear Energy Liability Exclusion 6. This Policy does not apply to liability of whatsoever nature directly or indirectly caused or contributed to by or arising from 6.1 ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel 6.2 the radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. Primary Inner Limit 7. This Policy does not apply to liability of a type which is subject to a limit of liability under the Primary Policy lower than the Primary Limit stated in the Schedule. Aggregate limit 8. Subject always to Condition 7 the Limit of Liability stated in the Schedule shall apply in the aggregate in respect of all claims made during any one Period of Insurance where liability is of a type which under the Primary Policy is subject to an aggregate limit of liability applying to the Period of Insurance. Policy Response 9. In circumstances where the Primary Policy applies criteria different from those applicable to this Policy in determining under which Period of Insurance a claim is admissible, this Policy shall be subject to the same criteria Provided that in respect of liability to which an aggregate Limit of Liability applies under this Policy to any one Period of Insurance the liability of the Company for all damages payable pertaining to any one Period of Insurance shall not exceed the Limit of Liability stated in the Schedule. Adjustment 10. If any part of the premium is calculated on estimates furnished by the Insured, the Insured shall keep an accurate record containing all particulars relative thereto and shall at all times allow the Company to inspect such record. The Insured shall within one month from the end of the Period of Insurance furnish to the Company such particulars and information as the Company may require. The premium for such period will thereupon be adjusted and the difference paid by or allowed to the Insured as the case may be. Notice of Occurrence 11. It is a condition precedent to any liability of the Company under this Policy that in the event of an occurrence reasonably likely to produce a claim which exceeds 50% of the Underlying Limit the Insured shall give written notice as soon as practicable to the Company Such notice shall contain particulars sufficient to identify the Insured and fullest information obtainable at the time Cancellation 12. The Company may cancel this Policy in accordance with the terms of the Primary Policy or by the Company sending not less than 30 days notice thereof by recorded delivery letter to the Insured at the Insured s last known address. In such event the Company shall make a return of the proportionate part of the premium in respect of the unexpired Period of Insurance from the effective date of cancellation or if the premium has been based wholly or partly on any estimates the premium shall be adjusted in accordance with Condition 10. Where any premium payable by direct debit instalments is not received, the Company will request payment for that unpaid premium in writing. If payment is not received within 15 days of that request, the Policy will be cancelled with effect from the date on which the initial unpaid direct debit was due.

4 Discharge of Liability 13. The Company may at its sole discretion in respect of any occurrence or occurrences covered by this Policy pay to the Insured the Limit of Liability applicable to such occurrence or occurrences (but deducting therefrom any sum or sums already paid), or any lesser sum for which the claim or claims arising from such occurrence or occurrences can be settled and the Company shall thereafter be under no further liability in respect of such occurrence or occurrences except for the payment of costs incurred prior to the date of such payment and for which the Company may be responsible hereunder. Choice of Law 14. This Policy of insurance shall be governed by and construed in accordance with the laws of the Republic of Ireland and be subject to the exclusive jurisdiction of the courts of the Republic of Ireland in respect of any dispute arising under or in connection with this Policy, including any dispute as to the formation or validity of the Policy. Contracts (Rights of Third Parties) Act (Great Britain) 15. A person or company who is not a party to this Policy has no rights under the Contracts (Rights of Third Parties) Act 1999 in respect of this Policy. This Condition does not affect any right or remedy which exists or is available notwithstanding such Act. Sanction Limitation 16. The Company shall not provide cover and the Company shall not be liable to pay any claim or provide any benefit hereunder to the extent that the provision of such cover, payment of such claim or provision of such benefit would expose the Company to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, Republic of Ireland or United States of America. Terrorism 17. This Policy does not apply to any liability caused by or resulting from Remedies for Nondisclosure or Misrepresentation a) an Act of Terrorism and/or b) in connection with any action taken in controlling, preventing suppressing or in any way relating to any Act of Terrorism For the purpose of this Condition an Act of 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. If the Company alleges that by reason of this Exclusion any liability is not covered by this Policy, the onus of proving to the contrary shall be upon the Insured. 18. In the event of any non-disclosure or misrepresentation which is neither deliberate nor reckless the Company s proportionate remedy shall be based upon what the Company can demonstrate it would have done if a fair presentation of the risk had been made, as follows: If the Company a) would not have entered into this Policy, then the Company may avoid this Policy but shall return the premium to the Insured; b) would have entered into this Policy but only on different terms, then the Company may treat this Policy as having included those different terms with effect from Inception; and/or c) would have entered into this Policy but only at a higher premium, then the Company may proportionately reduce the amount of any claim with effect from Inception. It is agreed between the Company and the Insured that:

5 (i) (ii) the remedies under b) and c) above are cumulative; and the Company s pre-contractual rights are unimpaired where any non-disclosure or misrepresentation is deliberate or reckless. For the purposes of this Condition, Inception means the commencement of the current Period of Insurance. Warranties 19. a) Subject to paragraph b) below, breach of any warranty will automatically suspend cover under this Policy until the Insured remedies such breach (if it is possible for the Insured to remedy such breach), with the result that the Company will have no liability to the Insured for any Loss which occurs, or which is attributable to something happening, during the period of suspension. b) This paragraph b) applies to any term of this Policy which meets the following: i) it does not define the risk as a whole; and ii) iii) the remedy for its breach is not expressly set out in this Policy; and compliance with the term would tend to reduce the risk of Loss: (1) of a particular kind; and/or (2) at a particular location; and/or (3) at a particular time. The Company may not rely on breach of such a term to exclude, limit or discharge its liability for any Loss if the Insured shows that breach of that term could not have increased the risk of the Loss which actually occurred in the circumstances in which it occurred. For the purposes of this Condition, Loss means loss, destruction, damage, cost, expense, consequential loss or injury. Fraudulent Claims 20.1 If the Insured makes a fraudulent claim under this Policy a) the Company shall not be liable to pay the claim and any sums paid by the Company in respect of the claim shall be repaid to the Company immediately and b) the Company may by giving notice in writing to the Insured at their last known address treat this Policy as having been terminated with effect from the time of the Fraudulent Act..2 If the Company does treat this Policy as having been terminated a) it may refuse all liability to the Insured under this Policy in respect of any Relevant Event occurring after the time of the Fraudulent Act and b) it need not return any of the premiums paid under this Policy Provided that such termination does not affect the rights and obligations of the parties to this Policy with respect to any Relevant Event occurring before the time of the Fraudulent Act. For the purposes of this Condition: Fraudulent Act means the behaviour that makes a claim fraudulent. Relevant Event means whatever triggers the Company s liability under this Policy.

6 Variations 21.1 This Condition applies where the Company is induced to agree a Variation to this Policy by any material non-disclosure or misrepresentation (a "qualifying breach")..2 If the qualifying breach was deliberate or reckless the Company may by giving notice in writing to the Insured at their last known address treat this Policy as having been terminated with effect from the time when the Variation was made and retain the premium..3 In all other cases the remedy for a qualifying breach is as follows: 3.1 If the total premium was increased or not changed as a result of the Variation and in the absence of the qualifying breach the Company a) would not have agreed the Variation, then the Company may treat this Policy as if the Variation were never made but in that event shall return any additional premium to the Insured; b) would have agreed the Variation but only on different terms, then the Company may treat the Variation as having always included those different terms; and/or c) would have agreed the Variation but only at a higher premium than that actually charged for it, then paragraph.4 below applies. The remedies under b) and c) above are cumulative. 3.2 If the total premium was reduced as a result of the Variation and in the absence of the qualifying breach the Company a) would not have agreed the Variation, then the Company may treat this Policy as if the Variation were never made and in addition paragraph 4. below applies; b) would have agreed to the Variation but only on different terms, then the Company may treat the Variation as having always included those different terms; and/or c) i) would have increased the premium ii) or iii).4 Proportionate reduction would not have reduced the premium would have reduced the premium by less than it did then paragraph.4 below applies. The remedies under b) and c) above are cumulative. If this paragraph 4. applies, the Company may reduce proportionately the amount to be paid in respect of any claim arising out of events after the Variation, meaning that the amount payable is only Y% of what it would otherwise have been under the terms of this Policy whether i) on the original terms, or ii) as varied, or

7 iii) under the different terms provided for by virtue of paragraph 3.1 b) or 3.2 b) above as the case may be, where: Y = Total premium actually charged X 100 P and in this formula P means: a) in the circumstances described by paragraph 3.1 c), the total premium the Company would have charged; b) in the circumstances described by paragraph 3.2 a), the original premium; c) in the circumstances described by paragraph 3.2 c), the original premium if the Company would not have changed it, and otherwise the increased or (as the case may be) reduced total premium the Company would have charged. For the purposes of this Condition, Variation means mid-term adjustment(s) made to this Policy.

8 Definitions Underlying Policy/ies 1. Underlying Policy/ies means Underlying Excess Policy/ies 1.1 the Primary Policy specified in the Schedule, and 1.2 any Underlying Excess Policy/ies. 2. Underlying Excess Policy/ies means those excess liability policies the details of which have been supplied to the Company. Underlying Limit 3. Underlying Limit means the amount stated as such in the Schedule and consists of the total of the limit or limits of liability provided by the Underlying Policy/ies. Proposal 4. Proposal means any information in connection with this insurance supplied by or on behalf of the Insured whether at the time of acceptance or prior or subsequent thereto. Products 5. Products means products or goods as defined in the Primary Policy but where there is no such definition in the Primary Policy, Products shall mean anything sold supplied altered constructed repaired serviced designed tested installed or processed by or on behalf of the Insured including containers packaging and labelling and which is not in the possession of the Insured at the time of the occurrence. Period of Insurance 6. Period of Insurance means the period stated in the Schedule or any subsequent period for which the Insured shall have paid and the Company shall have accepted a renewal premium.

9 Data Protection ACE European Group Limited and its group companies ( ACE ) will use the information supplied during the formation and performance of this Policy for policy administration, customer services, the payment of claims, the production of management information for business analysis and for risk assessment purposes in the manner set out below. We will keep this information for a reasonable period. Where sensitive personal data has been disclosed, including any medical or criminal record information, ACE will also use this information for these purposes. ACE are entitled to ask about criminal convictions in relation to insurance risks. ACE may also transfer certain information to countries that do not provide the same level of data protection as Ireland for the above purposes. A contract will be in place to ensure the information transferred is protected. ACE may record telephone calls for quality control, claims administration, fraud prevention and staff training purposes. When personal or sensitive data is supplied to ACE about third parties other than the Insured, both during the formation and performance of this Policy, ACE requires that you confirm you have obtained the explicit consent of those third parties to the supply of this information to ACE, to ACE processing this data, including sensitive personal data, and to the transfer of their information abroad. ACE will assume that the supplier of the information is authorised to receive, on their behalf, any data protection notices. ACE may share personal and sensitive personal information with the following organisations for the purposes described above: our connected companies, service providers, agents and subcontractors including loss adjusters and claims investigators; our reinsurers who use this information to assess the terms of specific policies and to administer our insurance policies generally; other insurance companies about other insurance policies you may have; the police, other insurance companies, fraud reference agencies and other representative bodies in relation to the prevention and detection of fraudulent claims or as part of our money laundering checks. We work with the police, other insurance companies, fraud reference and detection agencies, government agencies and other representative bodies to prevent and detect fraudulent or exaggerated claims. As part of this we will share information about your claims with providers of software designed to assist in the detection of fraudulent claims. We may also use commercially available databases to prevent money laundering. Other companies may contact these bodies for information to help them make decisions about insurance or similar services they provide to you. Individuals whose information has been supplied to ACE are entitled to a copy of that information on payment of a fee to have any inaccuracies corrected and in certain circumstances to have their information blocked or erased. Such information is available by contacting the Data Protection Officer at 5 George s Dock, IFSC, Dublin 1. We do not use personal information for marketing purposes, nor do we share it with any other company for marketing purposes, unless consent to do so has been received in writing from you. By entering into this contract of insurance, you agree and explicitly consent to the use and disclosure of your personal data, and also confirm that you have obtained the explicit consent of any third parties to the use and disclosure of their personal data in the manner outlined above.

10 Complaints Procedure ACE European Group Limited is dedicated to providing a high quality service and wants to maintain this at all times. If it is felt that a first class service has not been offered or a complaint must be made regarding this insurance please contact; 1. the intermediary (if any) who arranged this insurance; or 2. Ace s Country Manager Postal Address: ACE European Group Limited, 5 George s Dock, IFSC, Dublin 1. Telephone: (01) Facsimile: (01) If you are still dissatisfied, you may contact the Insurance Ireland Information Service at 39 Molesworth Street, Dublin 2. The service can advise you on how to proceed further and may be able to help in resolving the problem. 4. The Financial Ombudsman Bureau (FSOB) may be approached for assistance in limited circumstances if there is still dissatisfaction with ACE s final response. Those limited circumstances are where the policy is taken out by a consumer. The term consumer includes the following: personal customers of financial services limited companies with turnovers of less than EUR 3,000,000 charities, club trusts and partnerships The FSOB s contact details are given below. A leaflet explaining the procedure is available on request. Postal Address: 3rd Floor, Lincoln House, Lincoln Place, Dublin 2 Locall Telephone: (01) Facsimile: (01) enquiries@financialombudsman.ie Website: The existence of these Complaints Procedures does not affect any right of legal action the Policyholder may have against ACE. Insurance Act 1936 (Republic of Ireland) All moneys which became or may become due and payable by the Company under this policy shall in accordance with Section 93 of the Insurance Act 1936 be payable and paid in the Republic of Ireland. Finance Act (1990) Republic of Ireland The appropriate stamp duty has been and will be paid in accordance with the provisions of Section 113 of the Finance Act Authorisation and Regulation ACE European Group Limited trading as ACE Europe and Combined Insurance is authorised and regulated by the Prudential Regulation Authority in the United Kingdom and is regulated by the Central Bank of Ireland for conduct of business rules. Registered branch in Ireland no at 5 George's Dock, IFSC, Dublin 1. ACE European Group Limited (company number ) is registered in England and Wales with registered offices at 100 Leadenhall Street, London, EC3A 3BP.