(RE)INSURERS LIABILITY CLAUSE. (Re)insurers Liability several not joint

Transcription

1 (RE)INSURERS LIABILITY CLAUSE (Re)insurers Liability several not joint The liability of a (re)insurer under this contract is several and not joint with other (re)insurers party to this contract. A (re)insurer is liable only for the proportion of liability it has underwritten. A (re)insurer is not jointly liable for the proportion of liability underwritten by any other (re)insurer. Nor is a (re)insurer otherwise responsible for any liability of any other (re)insurer that may underwrite this contract. The proportion of liability under this contract underwritten by a (re)insurer (or, in the case of a Lloyd s syndicate, the total of the proportions underwritten by all the members of the syndicate taken together) is shown next to its stamp. This is subject always to the provision concerning signing below. In the case of a Lloyd s syndicate, each member of the syndicate (rather than the syndicate itself) is a (re)insurer. Each member has underwritten a proportion of the total shown for the syndicate (that total itself being the total of the proportions underwritten by all the members of the syndicate taken together). The liability of each member of the syndicate is several and not joint with other members. A member is liable only for that member s proportion. A member is not jointly liable for any other member s proportion. Nor is any member otherwise responsible for any liability of any other (re)insurer that may underwrite this contract. The business address of each member is Lloyd s, One Lime Street, London EC3M 7HA. The identity of each member of a Lloyd s syndicate and their respective proportion may be obtained by writing to Market Services, Lloyd s, at the above address. Proportion of liability Unless there is signing (see below), the proportion of liability under this contract underwritten by each (re)insurer (or, in the case of a Lloyd s syndicate, the total of the proportions underwritten by all the members of the syndicate taken together) is shown next to its stamp and is referred to as its written line. Where this contract permits, written lines, or certain written lines, may be adjusted ( signed ). In that case a schedule is to be appended to this contract to show the definitive proportion of liability under this contract underwritten by each (re)insurer (or, in the case of a Lloyd s syndicate, the total of the proportions underwritten by all the members of the syndicate taken together). A definitive proportion (or, in the case of a Lloyd s syndicate, the total of the proportions underwritten by all the members of a Lloyd s syndicate taken together) is referred to as a signed line. The signed lines shown in the schedule will prevail over the written lines unless a proven error in calculation has occurred. Although reference is made at various points in this clause to this contract in the singular, where the circumstances so require this should be read as a reference to contracts in the plural. LMA3333

2 SCHEDULE Policy Number: HUP Title of Assured: Address of Assured: Business of Assured: Wording: Period of Insurance: Period of Insurance for Risks attaching during the Period: Limit of Liability: The Excess: Retroactive Date: Conditions: EnviroSure client name recorded here; Professional Indemnity for professionals performing assessment, inspection & test, audit, evaluation, and consulting training services in the certification and accreditation industries in Australia or New Zealand Anywhere domiciled in Australia or New Zealand And elsewhere as declared in the Online application EnviroSure client business profession recorded here; Professional activities of competently qualified personnel who are engaged to carry out their duties within the scope of their chosen field. The scope includes assessment, inspection & test, audit, evaluation, and consulting training services in the certification and accreditation industries. Acceptance criteria are reviewed prior to binding cover. EnviroSure Wording Consulting professionals Professional Indemnity Insurance From: EnviroSure Start date agreed recorded here To: EnviroSure End date agreed recorded here Both days inclusive at 4:00pm local standard time at principal address of the Assured As per schedule attached, each period to commence and expire at 4:00 pm local standard time at the address of the insured party. AUD$10,000,000 any one claim and AUD$20,000,000 in the aggregate including costs and expenses incurred in the investigation, defence or settlement of any claim. AUD$2,000 each and every claim and in the aggregate including costs and expenses incurred in the investigation, defence or settlement of any claim None This insurance will be effected on a shared Limit of Indemnity basis for all competently qualified personnel attaching during the Period of Insurance noted for a Total Limit of AUD$10,000,000 and one claim and AUD$20,000,000 in the aggregate. The AUD$10,000,000 Limit of Indemnity, Once exhausted, shall be reinstated automatically to AUD$20,000,000 provided that such a reinstated Limit of Indemnity shall only be available for payment of a Claim: I. Which is covered under the Policy and arising from Claims made

3 II. III. against any Assured during the Period of Insurance; and Wholly unconnected with any Claim previously notified under this Policy and which do not arise out of the same originating source or cause or the same act, error or omission, or any series of acts, errors or omissions that are in any way related; Which is in excess of the Limits of Indemnity applicable to any other valid insurance which provides cover in excess of the Limit of Indemnity and provide that the total amount payable by Underwriters shall be limited to twice the Limit of Indemnity specified in the Schedule. Libel and Slander Extension Loss of Documents Extension (attached to Wording herein) NMA2918 War and Terrorism Exclusion Endorsement (attached to Wording herein) Asbestos & Toxic Mould Exclusion (attached to Wording herein) NMA 1686 Industries, Seepage, Pollution and Contamination Exclusion Clause No. 4 (attached to Wording herein) Several Liability Notice (attached to Wording herein) Endorsement 1 Trade Practices and Related Legislation (attached to Wording herein) Base Premium: Law and Jurisdiction: Notice to be given to: Agreement Number: The Address of the FSA: The Address of the Complaints Department: As agreed by underwriters Any dispute concerning the interpretation of this Policy shall be subject to the laws of Australia and to the exclusive Jurisdiction of the Courts of Australia. Blackmore Borley Limited Lime Street London EC3M 7AY HUP North Colonnade Canary Wharf London W14 5HS If your complaint cannot be resolved satisfactorily by your insurance advisor, please contact our Customer Relations Manager: Customer Relations Manager Hiscox Hiscox House Sheepen Place Colchester CO3 3XL United Kingdom Page 3

4 This insurance complies with the Insurance Council of Australia s General Insurance Code of Practice. Any enquiry or complaint relating to this insurance should be referred to the Coverholder shown above in the first instance. If this does not resolve the matter or you are not satisfied with the way a complaint has been dealt with, you should write to: Lloyd s Underwriters General Representative in Australia Suite 2, Level 21 Angel Place 123 Pitt Street Sydney NSW 2000 Telephone Number: (02) Facsimile Number: (02) Who will refer your dispute to the Complaints Department at Lloyd s. Complaints that cannot be resolved by the Complaints Department may be referred to the Financial Ombudsman Service (UK). Further details will be provided at the appropriate stage of the of the complaints process. Page 4

5 ENVIROSURE WORDING ENVIRONMENTAL CONSULTANTS PROFESSIONAL INDEMNITY INSURANCE WHEREAS the person(s) or partnership or company named in the schedule (hereinafter referred to as the Assured, which term shall include their executors or personal representatives) has submitted a written proposal containing particulars and statements which (together with any other information which may have been supplied) it is agreed shall be the basis of this contract and are to be considered as incorporated herein and in consideration of the Premium stated in the schedule. NOW THEREFORE, we, the Underwriters, hereby agree to indemnify the Assured up to but not exceeding in the aggregate the Limit of Liability stated in the schedule for any sum or sums which the Assured may become legally liable to pay arising from any Claim or Claims made against them and notified to Underwriters during the Period stated in the schedule as a direct result of any negligent act error or omission in the professional conduct of their Business, as submitted in the proposal and stated in the schedule, by the Assured or any partner or any person employed by the Assured. FURTHER for the purpose of this insurance, 'Claim' means any of the following: (a) (b) a writ, statement of claim, summons, application or other originating legal or arbitral process, cross-claim, counter claim or third or similar party notice served on the Assured; and an oral or written demand for compensation made against the Assured. FURTHER it is understood and agreed that the Underwriters will pay the costs and expenses incurred with the Underwriters prior written consent in the defence and/or settlement of any Claim. Such costs and expenses are inclusive of and not in addition to the Limit of Liability. PROVIDED ALWAYS THAT the Underwriters shall be liable only, in respect of any claim hereunder, for that part of the Claim (which for the purpose of this clause shall be deemed to include all costs and expenses incurred by Underwriters in investigating and defending the Claim) which exceeds the amount stated as the Excess in the schedule. It being understood and agreed that if any expenditure is incurred by the Underwriters which, by virtue of this clause, is the responsibility of the Assured then such amount shall be reimbursed to the Underwriters by the Assured forthwith. Page 5

6 EXCLUSIONS This insurance does not cover any liability whatsoever arising out of:- 1. The manufacture, construction, alteration, repair, servicing, treating of any goods or products sold, supplied or distributed by or for and/or on behalf of the Assured. 2. Bodily Injury, Sickness, Disease or Death sustained by any person arising out of and in the course of their employment by the Assured under a contract of service or apprenticeship with the Assured. 3. Any Claim made against the Assured as a result of any dishonest, malicious, or illegal acts of the Assured or their employees. 4. The ownership, use, occupation or leasing of property mobile and/or immobile by, to or on behalf of the Assured. 5. Any Claim or Claims made or actions instituted within the United States of America or Canada or any territories which come within the jurisdiction of the United States of America or Canada. It also being understood that Underwriters have no liability to investigate or defend the Assured against such Claim or Claims or be liable to enforce a judgement obtained in any court of the United States of America or Canada or any territories which come within the jurisdiction of the United States of America or Canada. 6. (a) Loss or destruction of or damage to any property whatsoever or any loss or expenses whatsoever resulting or arising therefrom or any consequential loss (b) Any legal liability or whatsoever nature directly or indirectly caused by or contributed to by or arising from (i) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel (ii) the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. Page 6

7 8. Any consequence of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, terrorist act, rebellion, revolution, insurrection or military or usurped power. 9. Libel and Slander/Defamation. 10. Loss of Documents. 11. Any liability directly or indirectly assumed by the Assured under any contract, warranty, agreement or guarantee, unless such liability would have attached to the Assured notwithstanding such contract, warranty, agreement or guarantee. 12. Any fines, penalties, punitive or exemplary damages. 13. Any liability for: (a) Bodily Injury, sickness, disease or death or loss of, damage to, or loss of use of property directly or indirectly caused by seepage, pollution or contamination, provided always that this paragraph shall not apply to loss of or physical damage to or destruction of tangible property, or loss of use of such property damaged or destroyed, where such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this insurance where the same is as a direct result of any negligent act, error or omission by the Assured in the professional conduct of their Business. (b) The cost of removing, nullifying or cleaning-up seeping, polluting or contaminating substances unless the seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of the Insurance where the same is as a direct result of any negligent act, error or omission by the Assured in the professional conduct of their Business. 14. Any negligence on the part of the Assured in connection with the estimate of construction costs. 15. Any Claims for liability arising out of any failure to meet contractual requirements relating to output, efficiency or durability, unless such failure relates to a negligent act, error or omission by the Assured in the professional conduct of their Business. Page 7

8 CONDITIONS 1. ASSUREDS DUTIES IN THE EVENT OF A CLAIM: It is a condition precedent to Underwriters liability under this insurance that: (a) Upon receipt by the Assured of a Claim or Claims, the Assured shall immediately notify the person(s) named for that purpose in the schedule, for transmission to the Underwriters of the Claim or Claims and shall provide full information insofar as such information is in their possession. This is a claims made Certificate. The Certificate does not provide cover for circumstances which may give rise to a Claim, whether or not those circumstances are notified to the Underwriters. The Assured may have statutory rights under Section 40(3) of the Insurance Contracts Act, but those rights do not form part of the Certificate. (b) The Assured shall not admit liability for or settle or make or promise any payment in respect of any Claim which may be the subject of indemnity hereunder or incur any costs or expenses in connection therewith without the written consent of the Underwriters who if they so wish shall be entitled to take over and conduct in the name of the Assured the defence and/or settlement of any such Claim for which purpose the Assured shall give all such information and assistance as the Underwriters may reasonably require. 2. RETROACTIVE DATE: Where a Retroactive Date is specified in the schedule this insurance will not apply to Claims made against the Assured by reason of any negligent act, error or omission committed or alleged to have been committed prior to the said Retroactive Date. 3. AGREEMENT TO PAY CLAIMS: Underwriters agree to provide indemnity under this insurance without requiring the Assured to dispute any Claim unless a Queen's Counsel (to be mutually agreed upon by the Underwriters and the Assured) advises that the same could be contested with a reasonable prospect of success by the Assured and the Assured consents to such Claim being contested, but such consent is not to be unreasonably withheld. In the event of any dispute arising between the Assured and the Underwriters as to what constitutes an unreasonable refusal to contest a Claim at Law, the President for the time being of the Professional Body of which the Assured is a member shall nominate a Referee to decide this point (only) and the decision of such Referee shall be binding on both parties. 4. OTHER INSURANCE: If at the time any claim arises under this insurance the Assured is or would but for the existence of this insurance be entitled to indemnity under any other Certificate or Certificates, the Underwriters shall not be liable except in respect of any excess beyond the amount which would have been payable under such other Certificate or Certificates had this insurance not been effected. Page 8

9 5. WAIVER OF SUBROGATION AGAINST EMPLOYEES: It is hereby agreed that if any payment is made under this insurance in respect of a Claim and the Underwriters are thereupon subrogated to all the Assured's rights of recovery in relation thereto the Underwriters shall not exercise any such rights against any employee of the Assured unless the Claim has been brought about or contributed to by the dishonest, fraudulent, criminal or malicious act or omission of the employee. 6. FRAUDULENT CLAIMS: Subject to the Insurance Contracts Act, if the Assured shall make any claim under the Certificate knowing the same to be false or fraudulent, as regards amount or otherwise, the Underwriters can deny liability to the Assured in respect of the claim under the Certificate. 7. AGREEMENT TO PAY LIMIT: It is hereby agreed that the Underwriters may at any time pay to the Assured in connection with any Claims or series of Claims under this Certificate the Limit of Liability (less any sums already paid) or any lesser sum for which such claims can be settled and upon such payment the Underwriters shall not be under any further liability in respect of such Claims. 8. GOVERNING LAW: This Certificate is governed by the laws of Australia. 9. JURISDICTION: The Underwriters and the Assured irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of Australia. Any summons notice or process to be served upon the Underwriters may be served upon (Underwriters to insert details) who has authority to accept service and to enter an appearance on Underwriters behalf. 10. CANCELLATION: Underwriters are entitled, by notice in accordance with the Insurance Contracts Act 1984, to cancel this Certificate on the grounds set out in that Act. Page 9

10 RJW 002 LIBEL AND SLANDER EXTENSION Notwithstanding Exclusion 9 of the Certificate Wording, and subject otherwise to the terms, clauses and conditions of this Certificate, the Underwriters will indemnify the Assured for all sums which the Assured may become legally liable to pay for any libel or slander uttered by the Assured in their professional capacity as stated in the Schedule, provided that this insurance shall not extend to any matter contained in a journal or publication or in any communication or contribution to the Press, Radio or Television. All other Certificate Terms, Conditions and Exclusions remain unchanged Page 10

11 RJW 003 LOSS OF DOCUMENTS EXTENSION Notwithstanding anything contained herein to the contrary, it is understood and agreed that if during the currency of this Certificate the Assured shall discover, and shall within seven days of the date of discovery give written notice thereof to the Underwriters, that any Documents (as hereinafter defined) the property of, or entrusted to, the Assured or any other Party or Parties to or with whom such Documents have been entrusted lodged or deposited by the Assured in the ordinary course of business have whilst within the limits of the Australia been destroyed or damaged or lost or mislaid and after diligent search cannot be found this Certificate shall indemnify the Assured for (a) any liabilities of whatsoever nature which they may incur to Third Parties in consequence of such Documents having been so destroyed, damaged, lost or mislaid. (b) all costs, charges and expenses of whatsoever nature incurred by the Assured in replacing and/or restoring such Documents. PROVIDED ALWAYS THAT 1. the amount of any claim for costs and expenses as above shall be supported by Bills, and/or Accounts which shall be subject to approval by some competent person to be nominated by the Underwriters with the approval of the Assured. 2. no liability shall attach hereto for any loss brought about or contributed to by the dishonesty of any of the Assured's partners or employees. 3. on payment of any loss hereunder, the Assured shall subrogate to Underwriters their right of procedure against any other person or persons for the recovery thereof. 4. Underwriters' liability in respect of any and all losses hereunder shall be limited to the sum of AUD50, the Excess as stated in the Schedule of the Certificate wording shall not apply to this Loss of Documents Extension. 6. "Documents" shall mean Deeds, Wills, Agreements, Maps, Plans, Records, written or printed Books, Letters, Certificates or written or printed Documents and/or Forms of any nature whatsoever (excluding, however, any Bearer Bonds or Coupons, Bank or Currency Notes or other negotiable paper) used in connection with the Assured's business as stated in the Schedule. Page 11

12 7. it is understood and agreed that the limit of liability under this Loss of Documents Extension is in included in the limit of liability as stated in the Schedule. 8. for the purposes of this extension and no other the Excess is AUD500 each and every claim. All other Certificate Terms, Conditions and Exclusions remain unchanged Page 12

13 WAR AND TERRORISM EXCLUSION ENDORSEMENT Notwithstanding any provision to the contrary within this insurance or any endorsement thereto it is agreed that this insurance excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any of the following regardless of any other cause or event contributing concurrently or in any other sequence to the loss; 1. war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or 2. any act of terrorism. For the purpose of this endorsement 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. This endorsement also excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to 1 and/or 2 above. If the Underwriters allege that by reason of this exclusion, any loss, damage, cost or expense is not covered by this insurance the burden of proving the contrary shall be upon the Assured. In the event any portion of this endorsement is found to be invalid or unenforceable, the remainder shall remain in full force and effect. All other Certificate Terms, Conditions and Exclusions remain unchanged 08/10/01 NMA2918 Page 13

14 ASBESTOS & TOXIC MOULD EXCLUSION This insurance does not cover any liability whatsoever arising directly or indirectly out of or resulting from or in consequence of, or in any way involving:- (a) (b) (c) (d) (e) Asbestos, or any materials containing asbestos in whatever form or quantity; or The actual, potential, alleged or threatened formation, growth, presence, release or dispersal of any fungi, moulds, spores or mycotoxins of any kind; or Any action taken by any party in response to the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of fungi, moulds, spores or mycotoxins of any kind, such action to include investigating, testing for, detection of, monitoring of, treating, remediating or removing such fungi, moulds, spores or mycotoxins; or Any governmental or regulatory order, requirement, directive, mandate or decree that any party take action in response to the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of fungi, moulds, spores or mycotoxins of any kind, such action to include investigating, testing for, detection of, monitoring of, treating, remediating or removing such fungi, moulds, spores or mycotoxins. Bodily Injury and/or property damage. This exclusion does not apply where such claim was the result of a negligent act, error or omission in the course of the Insured s professional business as specified in the policy. All other Certificate Terms, Conditions and Exclusions remain unchanged Page 14

15 INDUSTRIES, SEEPAGE, POLLUTION AND CONTAMINATION EXCLUSION CLAUSE No. 4 (Approved by Lloyd s Underwriters Non-Marine Association) This Insurance does not cover any liability for: 1. (Personal Injury or Bodily Injury or loss of, damage to or loss of use of property directly or indirectly caused by seepage, pollution or contamination. 2. The cost of removing, nullifying or cleaning-up seeping, polluting or contaminating substances. 3. Fines, penalties, punitive or exemplary damages. This exclusion does not apply where such claim was the result of a negligent act, error or omission in the course of the Insured s professional business as specified in the policy. 22/1/70 NMA1686 All other Certificate Terms, Conditions and Exclusions remain unchanged Page 15

16 SEVERAL LIABILITY NOTICE The subscribing insurers obligations under contracts of insurance to which they subscribe are several and not joint and are limited solely to the extent of their individual subscriptions. The subscribing insurers are not responsible for the subscription of any co-subscribing insurer who for any reason does not satisfy all or part of its obligations. LSW1001 (Insurance) 08/94 Page 16

17 ENDORSEMENT 1 TRADE PRACTICES AND RELATED LEGISLATION The Insurer agrees to indemnify the Insured against civil liability for compensation arising from any Claim made against the Insured under the terms of the Trade Practices Act 1974 (Commonwealth), the Fair Trading Act 1987 (NSW), the Fair Trading Act 1985 (Victoria) or similar legislation enacted by the other states or territories of the Commonwealth of Australia or the Dominion of New Zealand and any re-enactment thereof. All other Certificate Terms, Conditions and Exclusions remain unchanged Page 17

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