Professional Shield Design and Build 2021.1
Professional Indemnity Insurance from Prokopius
POLICY WORDING
PREAMBLE
“THIS POLICY IS ON A CLAIMS MADE AND CIRCUMSTANCE NOTIFIED BASIS”
This POLICY is concluded by the POLICYHOLDER accepting the offer of Insurance made to them by the INSURER.
This is a “Claims Made” policy which means that the policy will only respond to claims first made against the INSURED parties under this policy during the POLICY PERIOD. This requirement is contained within the definition of a CLAIM within this POLICY and further stated under “Insured Event” below.
In consideration of the promise to pay the premium shown in the SCHEDULE by the INSURED, the INSURER agrees to provide coverage as detailed in this POLICY, subject to the following terms, conditions, exclusions and definitions. The provision of this insurance is based on the material information provided to INSURERS.
Notice is hereby given by the INSURER that this POLICY shall be suspended if the premium has not been received by the INSURER within 30 days of the Inception of the POLICY PERIOD (or in respect of any instalment premium of the due date for such instalment). The suspension of this POLICY shall begin on the 31st day following inception of the POLICY PERIOD (or of the due date in respect of instalment premiums) and the INSURER shall not be liable for any CLAIM made against the INSURED during the Suspension period nor for amounts payable under this POLICY which are incurred during the Suspension period. The period of Suspension shall last for a period of 30 days. Notice is further hereby given that if premium is received within the period of Suspension, then the POLICY shall continue in force as if such Suspension period never applied. If the premium is not received within such Suspension period then the INSURER hereby gives notice that the POLICY shall be cancelled ab initio. This cancellation ab initio may be revoked by the INSURER at their discretion at any time.
1.1 Insuring Clause
1.2
INSURANCE OBJECT
The INSURER will indemnify LOSS of the INSURED.
INSURED EVENT
The Insured Event is a CLAIM first made against the INSURED during the POLICY PERIOD.
EXTENSIONS
The following extensions are granted as part of this insurance and are subject to observance of the conditions, exclusions and definitions, together with any other endorsed terms: -
2.1 Loss of or Damage to Documents or Data
In the event of physical loss of or damage to DOCUMENTS or the loss of or damage to electronic data, discovered to be lost, damaged or destroyed during the POLICY PERIOD, the INSURER shall indemnify the INSURED for any reasonable cost or expense incurred by the INSURED (and to which the INSURER has consented) in replacing, restoring or reconstituting any DOCUMENTS or DATA,
This extension is subject to a sub-LIMIT OF LIABILITY of EUR75,000 in the aggregate for all losses (which sub-limit shall be part of and not in addition to the LIMIT OF LIABILITY).
2.2 Joint Venture/Consortium
The INSURER shall indemnify the INSURED for any CLAIM first made against them during the POLICY PERIOD, which the INSURED is legally liable to pay, whether jointly or severally, which arises out of the exercise and conduct of the PROFESSIONAL BUSINESS, whilst a member of a joint venture or consortium, where such joint venture or consortium, together with the turnover/fees of the joint venture or
consortium (not just the insured’s proportion), has been declared to INSURERS, whether or not the joint venture or consortium is conducted through a separate legal entity. Provided always that the indemnity is limited to the INSURED’S share of the total liability of the joint venture or consortium. It being understood that: -
2.2.1 the INSURED will not, without the express agreement of INSURERS, waive any right of recovery against any joint venture or consortium partner or any claim to contribution, by such partner
2.2.2 INSURERS retain all rights, against the INSURED’S joint venture or consortium partners, to which they may become subrogated.
2.3 Self-employed Persons
The INSURER shall indemnify the INSURED for the liability devolving upon them, arising out of the use of self-employed or contract hire persons, in connection with the PROFESSIONAL BUSINESS. The use of individual persons need not be disclosed to INSURERS, but details of payments, to such persons, must be declared to INSURERS, at renewal of this insurance. For the purpose of this POLICY, such persons are deemed to be EMPLOYEES.
2.4 Indemnity to Employees, Former Employees and/or Consultants
The INSURER shall indemnify EMPLOYEES in respect of any CLAIM made against them during the POLICY PERIOD, which arises out of the exercise and conduct of the PROFESSIONAL BUSINESS.
Former DIRECTORS or former EMPLOYEES, who have continued as consultants to the INSURED, and such persons who were formerly consultants to the INSURED are indemnified in respect of any CLAIM made against them, which arises out of the exercise and conduct of the PROFESSIONAL BUSINESS.
2.5 Infringement of Intellectual Property
The INSURER shall indemnify the INSURED for reasonable professional or legal costs and expenses incurred with INSURERS’ prior written consent (not to be unreasonably withheld), in the defence of any injunction and/or proceedings in respect of infringement or alleged infringement of any intellectual property rights, including but not limited to copyright or patents, including electronic format, vested in or otherwise enjoyed by the INSURED.
This extension is subject to a sub-LIMIT OF LIABILITY of EUR150,000 in the aggregate for all losses (which sub-limit shall be part of and not in addition to the LIMIT OF LIABILITY).
2.6 Costs and Expenses of Mitigation
The INSURER shall indemnify the INSURED for reasonable costs and expenses incurred, prior to hand-over of the contract works, in taking any necessary action for the sole purpose of mitigating a CLAIM under 1.1 or in seeking to avoid or mitigate such a CLAIM, arising out of any CIRCUMSTANCE discovered during the POLICY PERIOD, provided that the INSURED can show, to INSURERS’ satisfaction, that non-payment of such costs and expenses would provoke a claim under this insurance, greater than the costs of mitigating any loss.
2.7 Vicarious Liability
The INSURER shall indemnify the INSURED for CLAIMS, resulting directly from negligence in the conduct and exercise of the activities and duties, by consultants or any other person or party, for whom the INSURED is responsible.
EXCLUSIONS
The INSURER shall not pay LOSS or any other amount to the extent that any one or more of the following exclusions apply
3.1 Deductible
The INSURER shall not be liable for that part of any LOSS which constitutes the DEDUCTIBLE. The application of the DEDUCTIBLE is further detailed in Section 5.2.
3.2 Liability involving Transport or Property owned or occupied by the Insured
1. failure to perform (non-performance of) contractual obligation (failure to deliver result of contract work)
2. delay of performance of contractual obligation, missing a contract performance deadline (delay in delivering result of contract work), including intermediate deadlines
3. contractual penalties (fine, interest)
4. liability, indemnity, warranty, guarantee, duty or financial obligation assumed by the INSURED under contract or express agreement unless civil liability would have attached to the INSURED by law notwithstanding such express agreement or contract clause.
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising solely and directly out of the ownership, possession or use by or on behalf of the INSURED of any:
3.2.1 aircraft, watercraft, hovercraft, motor vehicle or trailer, or
3.2.2 buildings, structures, premises or land or civil engineering structure or that part of any building leased, occupied or rented by the INSURED, or
3.2.3 other property of the INSURED . or in their care, custody or control.
This exclusion will not apply to any item described, which is owned, used or occupied by or in the possession of the INSURED, for the sole or dominant purpose of performing its obligations to any customer, client or third party or which forms part of any permanent or temporary works of any construction contract, in which the INSURED is involved.
3.3 Liability arising out of Employment
The INSURER shall not pay LOSS or any other amount in respect of
3.3.1 injury, disease, illness (including mental stress) or death of any EMPLOYEE under a contract of service with the INSURED, or
3.3.2 any dispute, between the INSURED and any present or former EMPLOYEE or any person who has been offered employment with the insured, being brought under or relating to the applicable Employment Laws.
3.4 Supply of Goods
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM or loss arising out of the manufacture, construction, alteration, repair, servicing or treating of any goods or products sold, distributed or supplied, including the sale and/or supply of third party hardware and/or software by the INSURED, unless such CLAIM arises directly out of negligent creation, implementation, advice, design or specification by the INSURED, in the course of their PROFESSIONAL BUSINESS.
3.5 Contractual liability
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising directly from:
For avoidance of doubt, the INSURER shall not indemnify the INSURED for the following LOSS, unless with INSURERS’ prior written consent (which consent shall not be unreasonably withheld or delayed) per loss mitigation provisions of this POLICY (if such are applicable):
1. Fees unpaid to the INSURED and/or repayable by the INSURED on the basis of failure to perform (non-performance of) contractual obligation and/or defective performance of contractual obligation (defects in the results of the work; improper quality of work)
2. Expenses of the INSURED for elimination of defects in the results of the work (improper quality of work) of the INSURED
For avoidance of doubt, INSURED has obligation to perform contract work at his own risk and deliver the result of contract work of sufficient quality and without defects.
3.6 Fraud, Dishonesty or Criminal Act
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM to the extent it is:
3.6.1 directly or indirectly contributed to, or caused by, any act, error or omission of any partner or director of the INSURED, which is found by a court of final appeal to be dishonest, fraudulent, criminal or malicious, or
3.6.2 where any person has committed a dishonest, fraudulent, criminal or malicious act, after discovery by the INSURED of reasonable cause for suspicion that such act has been committed.
3.7 Controlling Interest
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM made against the insured by either:-
3.7.1 an entity in which the insured exercises a controlling interest, or
3.7.2 an entity exercising a controlling interest over the insured, by virtue of their having a financial or executive interest in the operation of the insured
Unless such claim is made against the insured for an indemnity or contribution in respect of a claim made by an independent party against the said entities detailed in 3.7.1 or 3.7.2 and arises out of the exercise and conduct of the business.
3.8 Nuclear Risks
The INSURER shall not pay LOSS or any other amount which arises directly or indirectly from:
1) ionising radiations or contamination by radioactivity from any nuclear fuel, waste or substance, or
2) the radioactive, toxic, explosive or other hazardous properties of any explosive, nuclear assembly or nuclear component thereof; or
3) war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, riot, civil commotion assuming the proportion of or amounting to a popular uprising, military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority, or
4) any act or acts, or threat thereof, of terrorism, force or violence for political, religious or other ends directed towards the overthrowing or influencing of the government, or for the purpose of putting the public in fear, by any person or persons acting alone or on behalf of or in connection with any organisation.
In the event any portion of this Exclusion is found to be invalid or unenforceable, the remainder shall continue to be in full force and effect.
3.9 Area of Activities
The INSURER shall not pay any CLAIM or LOSS arising out of work or activities undertaken by the INSURED, outside the GEOGRAPHICAL LIMITS stated in the SCHEDULE.
3.10 Jurisdiction
To the extent that a CLAIM is brought outside the Jurisdiction specified in ITEM 7 of the SCHEDULE, the INSURER shall not pay LOSS or any other amount otherwise insured hereunder.
3.11 Fines, Penalties, Punitive, Multiple or Exemplary Damages
The Insurer shall not be liable hereunder for any civil or criminal fines, penalties, forfeitures, taxes, punitive, multiple or exemplary damages (other than in respect of defamation, libel or slander), or other monetary awards deemed uninsurable under applicable law, where such have been identified separately within an award of a court.
3.12 Loss of Documents - Magnetic or Electrical Media
The INSURER shall not pay LOSS or any other amount arising from loss of or damage to documents which are stored on magnetic or electrical media, unless such documents are duplicated on magnetic or electrical media, with the intention that, in the event of loss or damage, the duplicate can be used as the basis for restoring the documents to their original status.
However this exclusion shall not apply to the extent that cover of loss of Documents is provided under Extension 2.1 of this POLICY.
3.13 Pollution
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising directly from POLLUTION.
However this exclusion shall not apply to any other LOSS where the proximate cause is POLLUTION caused by a sudden, unintended and unexpected POLLUTION during the POLICY PERIOD and to the extent that such POLLUTION arises from the PROFESSIONAL BUSINESS.
3.14 Asbestos & Toxic Mould
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising directly or indirectly out of or resulting from or in consequence of, or in any way involving:
3.14.1 asbestos, or any materials containing asbestos in whatever form or quantity, or
3.14.2 the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of any fungi, moulds, spores or mycotoxins of any kind, or
3.14.3 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
3.14.4 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.
3.15 Computer Virus
The INSURER shall not pay LOSS or any other amount arising from any CLAIM arising from the transmission of a computer virus.
3.16 Directors’ and Officers’ Liability
The INSURER shall not pay LOSS or any other amount arising from any CLAIM made, from those liabilities:
a) arising from being a director, officer or trustee of the INSURED (as opposed to those duties and functions carried out in furtherance of the business); and/or
b) arising from the acceptance of any directorship or trusteeship in any other company, not forming part of the INSURED, unless the acceptance of such position is for a fee and forms part of the PROFESSIONAL BUSINESS.
3.17 Other Insurance
The INSURER shall not pay LOSS or any other amount arising from any CLAIM where the INSURED are entitled to indemnity under any other insurance, except in respect of anything beyond the amount which would have been payable under such insurance, had this POLICY not been effected.
3.18 Full Bodily Injury and/or Property Damage
The INSURER shall not pay LOSS or any other amount related to any CLAIM arising out of injury, disease, illness (including mental stress) or death of any person(s) or loss of or damage to property (except losses insured under extension 2.1).
3.19 Previous Claims
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM or CIRCUMSTANCE, which has been notified and accepted by INSURERS, in respect of any other insurance attaching prior to the inception of this POLICY or as disclosed in the PROPOSAL or any CLAIM or CIRCUMSTANCE the INSURED was or should have been aware of, prior to the inception of this POLICY.
3.20 Profit and Budget Forecast
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising directly or indirectly out of the PROFESSIONAL BUSINESS to the extent that such business constitutes any actual or implied:-
3.23.1 valuation, or
3.23.2. forecast, in respect of profit and/or loss and/or revenue and/or expenditure and/or costs and/or other similar business units.
3.21 Trading Losses
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising out of any trading losses or trading liabilities incurred by any business managed or carried on by the INSURED COMPANY, including loss of any client account or business.
3.22 Failure to Arrange Finance
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM for consequential loss arising from the failure of the insured to arrange and/or maintain finance.
3.23 Failure to Arrange Insurance
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM for consequential loss arising from the failure of the insured to arrange and/or maintain insurance.
3.24 Computer Records
The INSURER shall not pay LOSS or any other amount to the extent that a CLAIM arises directly from loss, distortion or erasure of computer records:
(a) whilst mounted in or on any machine for use or processing unless caused by any negligent act or omission on the part of the INSURED, or
(b) resulting from wear, tear, vermin or gradual deterioration, or
(c) caused by climatic or atmospheric conditions or extremes of temperature, or
(d) due to the presence of magnetic flux or due to loss of magnetism.
3.25 Pension Trustee Liability
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising from any INSURED whilst acting in the capacity of trustee, fiduciary or administrator of any employee-sponsored pension or superannuation scheme or superannuation programme.
3.26 Investment Advice
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM relating to the financial return of any investment or the depreciation or loss of investments, when such depreciation or loss is as a result of normal or abnormal fluctuations in any financial, stock, commodity or other markets, which are outside the influence or control of the INSURED.
In addition, no cover will be provided in connection with any investment advice given or services performed, which have not been authorised, where such authorisation is required under any statutory regulation by an appropriate statutory authority.
3.27 Tender at Less than Economic Terms
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM where the proximate cause arises directly from the deliberate decision by the INSURED to tender for a contract at less than economic terms, for commercial or goodwill reasons.
3.28 Construction Costs
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising out of estimates of probable construction costs being exceeded.
Provided that this exclusion will not apply to any CLAIM arising directly from negligence of a quantity surveyor, employed by or appointed on behalf of the INSURED, to carry out those activities normally undertaken by a quantity surveyor in private practice.
3.29 Turnover Declared as Non-Professional
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising from the INSURED’S activities where it is, has been or would be, declared as material facts, that the INSURED and/or their consultants or sub-contractors have no responsibilities for design or other professionally related activities.
3.30 Defamation, Libel & Slander
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising from or in direct consequence of any defamation, libel or slander uttered by the INSURED, in the exercise and conduct of the PROFESSIONAL BUSINESS.
3.31 Defective Workmanship or Materials
Any claim arising from defective workmanship or materials, relating to physical works of construction.
3.32 Cladding
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM directly or indirectly arising from or relating to
3.33.1 any Cladding system or cladding materials consisting in whole or in part of Aluminium Composite Material; and / or
3.33.2 any Cladding system or cladding materials consisting in whole or in part of high pressure laminate (HPL) and / or
3.33.3 the combustibility, fire performance or fire safety requirements of any Cladding, glazing, doors, external wall system and/or internal wall system of any building or structure; and / or
3.33.4 the combustibility, fire performance or fire safety requirements of any component or material used in the manufacture, assembly or construction of any Cladding, glazing, doors, external wall system and/or internal wall system of any building or structure.
For the purposes of this exclusion, Aluminium Composite Material shall mean a type of panel that consists of two aluminium sheets bonded to a non-aluminium core.
For the purposes of this exclusion, Cladding refers to components that are attached to the primary structure of a building to form non-structural, external surfaces, as opposed to buildings where the external surfaces are formed by structural elements, such as masonry walls.
3.33 Specific Works
The INSURER shall not pay LOSS or any other amount in respect of any CLAIM arising from the INSURED’S liability for the PROFESSIONAL BUSINESS related to bridges, tunnels, dams, mining, rail and airports.
CLAIMS CONDITIONS
The following claims conditions apply to this POLICY:
4.1 Conditions Precedent to Liability
All conditions contained in this section are deemed to be conditions precedent to liability.
4.2 Discovery of a Claim or Loss or Circumstance
If, during the POLICY PERIOD, the INSURED:-
4.2.1 becomes aware of any CLAIM, , the INSURED will give notice to INSURERS, as soon as practicable and in the event that such CLAIM is a formal request to attend and/or respond to a court hearing, then the INSURED must provide notice to INSURERS within 7 days of the receipt of such CLAIM;
4.2.2 becomes aware of any CIRCUMSTANCE, the INSURED will give notice to INSURERS of such CIRCUMSTANCE, as soon as practicable
INSURERS agree that any such circumstance, notified to them during the POLICY PERIOD and which subsequently gives rise to a claim after expiry of this insurance, will be deemed to be a CLAIM first made during the POLICY PERIOD. PI23PR0111 Page 9 of 17
The INSURED should be aware that any intentional or unreasonable delay in providing the notification may prejudice the INSURER’S position with regards to the amounts payable under this POLICY and that there is a possibility that the INSURER shall not be liable in respect of such prejudice
4.3 Notice
Please notify the INSURER by email at the following contact address:
We recommend that you also notify your intermediary and hold a copy of any such notifications for your records.
4.4 Obligations and rights of the Policyholder regarding a CLAIM
1) The POLICYHOLDER shall ensure that notification of any CLAIM is made in accordance with the notification provisions of this POLICY.
2) The POLICYHOLDER shall not intentionally do anything that intended to prejudice the position of the INSURER with respect to the amount payable under this POLICY.
3) The POLICYHOLDER should take any reasonable measures to mitigate LOSS.
4) The POLICYHOLDER (and by extension all INSUREDS) should not admit liability, or agree to any settlement, in respect of any CLAIM unless with the prior written consent of the INSURER (which consent shall not be unreasonably withheld or delayed). However, any instance of self-reporting made by the INSURED to any authority legally empowered to receive such self-reporting shall not constitute an admission of liability.
5) The POLICYHOLDER has the duty to provide information to the INSURER as detailed in the Claims Payment Procedure and Terms section of this POLICY.
6) The POLICYHOLDER has the duty to defend any CLAIM. The POLICYHOLDER also has the right to request that the INSURER assists in the defence of a CLAIM and in such cases the POLICYHOLDER is obliged to provide any reasonable assistance and co-operation requested by the INSURER.
7) The POLICYHOLDER is obliged the pay the premium when due.
8) The POLICYHOLDER is entitled to administrate this POLICY on behalf of all INSUREDS.
4.5 Obligations and rights of the INSURER regarding a CLAIM
1) The INSURER is obliged to provide indemnification as required by the POLICY.
2) The INSURER has the right to assume any available subrogation rights in accordance with the Subrogation provisions of this POLICY.
3) The INSURER shall comply with all obligations attaching to the INSURER under the applicable law governing this POLICY.
4) Notwithstanding Part 4.4.6), the INSURER has the right to effectively associate with the POLICYHOLDER in the defence and or settlement of any CLAIM or, at the INSURER’s discretion, to take over the investigation, defence and/or settlement of any CLAIM.
4.6 Claim Assessment
The INSURER shall assess damage according to the applicable law and industry norms and the general practice of the competent courts.
In the event that a CLAIM is partly attributable to matters covered by the POLICY and matters which are not covered by this POLICY then the INSURER, the POLICYHOLDER and the relevant INSURED shall use their collective best efforts to determine a fair allocation of coverage for such CLAIM.
4.7 LOSS calculation procedure
1) In the event that settlement of a CLAIM is possible but the POLICYHOLDER and/or INSURED elects to continue defence of such CLAIM, then the INSURER shall only pay, in respect of such CLAIM, the amount at which earlier settlement could have been made;
2) In all other cases the INSURER will calculate LOSS in accordance with the law applicable to this POLICY.
4.8 Claims payment procedure and terms
In the event of a CLAIM, the INSURED shall provide all information that has been reasonably requested by the INSURER in order to allow the INSURER to evaluate the validity of the CLAIM and to assess the strategy required to handle such CLAIM if covered.
From the point at which the INSURER has received all the relevant information and has been able to confirm the validity of the CLAIM, the INSURER has a maximum of 30 days to make payment of any amounts due to the INSURED in respect of such CLAIM.
The INSURER shall pay LOSS or any other due amounts as an indemnity to the INSURED . However, at the INSURER’s sole discretion the Insurer may make payments of LOSS or other due amounts on behalf of the INSURED to a 3rd party.
4.9 Disputes
Notwithstanding the provisions of the preceding paragraphs, if the insured and insurers cannot agree a common course of action with regard to any of the preceding claims conditions, the dispute will be resolved by the operation of condition 5.8. In the event of dispute with respect to allocation in section 4.6 until resolution the INSURER will continue to pay amounts under this POLICY according to their determination of a fair and proper allocation.
4.10 Claim Settlements
INSURERS may at any time pay to the INSURED in connection with any CLAIMS (or series of CLAIMS) 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 INSURERS will not be under any further liability in respect of such claims except for costs and expenses incurred prior to such payments and with INSURERS’ prior written consent.
4.11 Fraudulent Claims
If the INSURED makes a claim fraudulently or in the knowledge that it is materially false, as regards amount or otherwise, INSURERS may declare this POLICY void, from the date of such fraud or false representation, or, at their discretion, regard this POLICY as remaining in force and of full effect, until expiry of the POLICY PERIOD. In either case, INSURERS will have no liability to provide any indemnity under this POLICY, in respect of the particular CLAIM and any related matter, forming the subject of such fraudulent preferment or false representation.
GENERAL CONDITIONS
The following general conditions apply to this insurance:
5.1 Limit of Liability
The LIMIT OF LIABILITY is the maximum aggregate amount of liability of the INSURER under this POLICY unless specifically agreed otherwise herein. The LIMIT OF LIABILITY shall apply in the aggregate for the POLICY PERIOD. The LIMIT OF LIABILITY shall be inclusive of all LOSS and any other amount payable by the INSURER under the terms of this POLICY but shall not include the internal costs of the INSURER in administrating this POLCIY or any CLAIM or other covered event. The DEDUCTIBLE shall not form part of the LIMIT OF LIABILITY. For the purposes of determining the LIMIT OF INDEMNITY (and any applicable sublimits of liability) all CLAIMS resulting from one and the same proximate cause or a series of CLAIMS arising out of the same proximate cause shall be deemed to be one CLAIM.
5.2 Deductible
The cover available under this POLICY shall apply only in excess of any applicable DEDUCTIBLE. The DEDUCTIBLE shall apply to each CLAIM separately, however, in the event that multiple, continuous and/or repeated CLAIMS derive from the same proximate cause, then only one DEDUCTIBLE shall apply and such DEDUCTIBLE shall be the largest of the applicable DEDUCTIBLE amounts.
5.3 Double insurance, Insufficient insurance
This POLICY is intended to provide primary insurance coverage. However, if there are any other insurances affording similar professional indemnity cover, then Exclusion 3.17 (“Other Insurance”) may apply,
In the event that the quantum of the liability of the INSURED for matters covered by this POLICY and/or any other amounts payable under this POLICY are greater than the LIMIT OF LIABILITY, then there shall be no impact on the LIMIT OF LIABILITY or any other amount payable under this POLICY
5.4 Retroactive Date
Where a retroactive date is specified in the SCHEDULE, the INSURER shall not pay LOSS or any other amount to the extent that any PROFESSIONAL BUSINESS was carried out or failed to have been carried out prior to the RETROACTIVE DATE.
5.5 Subrogation
If any payment is made under the terms of this POLICY, the INSURED grants to INSURERS all rights of recovery against any parties from whom a recovery may be made, but the INSURED will take all reasonable steps to preserve such rights. However, INSURERS agree to waive any rights of recovery against any EMPLOYEE , unless liability has resulted in whole or part from any act or omission on the part of such persons, which is criminal or intentionally dishonest, fraudulent, or malicious
5.6 Consultants
It is an express requirement that:
5.6.1 all specialist designers professional sub-contractors and/or consultants, appointed by the INSURED, acting on the INSURED’S behalf or for whom the insured are responsible, carry the Minimum legally prescribed limit and scope of Professional Indemnity insurance, during the period of this insurance, and
5.6.2 the INSURED have satisfied themselves of its existence and extent of cover. Any failure to comply with this condition may entitle INSURERS to decline to provide indemnity under the terms of the POLICY
5.7 Governing Law & Jurisdiction
This POLICY shall be construed and governed by the laws of the country specified in Item 12 of the SCHEDULE and any matters regarding the construction or governance of this POLICY shall fall within the jurisdiction of court(s) specified in Item 12 of the SCHEDULE.
5.8 Insurance Disputes
Any dispute relating this POLICY shall be dealt with by submission to the Jurisdiction identified in Item 12 of the SCHEDULE.
The cost of such dispute resolution will be allocated by the agreed or appointed party on a fair and equitable basis.
5.9 Cancellation
This policy may be cancelled at any time by INSURERS or the INSURED, by either party giving the other thirty (30) days notice in writing, to their last known address or registered office (if a company) or by email and the premium will be adjusted on a pro rata basis.
5.10 Sanctions clause
The INSURER shall not provide cover nor 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 INSURER to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom or United States of America.
5.11 Assignment of INSURER’s rights and obligations under the insurance contract
The INSURER may transfer their rights and obligations under this POLICY to another insurer in accordance with the procedure prescribed by law. The POLICYHOLDER shall have a right to submit, in accordance such law, a written objection to such transfer. Such an objection by the POLICYHOLDER shall not be binding on the INSURER. If POLICYHOLDER objects to such transfer then they shall have the right to cancel the POLICY in accordance the cancellation provisions of this POLICY.
5.12 Several Liability
Insurers’ obligations under insurances to which they subscribe are several and not joint and are limited solely to the extent of their individual subscriptions. Insurers are not responsible for the subscription of any co-subscribing insurer who for any reason does not satisfy all or part of their obligations
5.13 Policyholder Complaints
In the event that you are not satisfied with any aspect of this POLICY and wish to make a complaint, you must first contact the CEO of the INSURER using the contact details specified in Item 7 of the SCHEDULE or as per the Communication Provisions section of this POLICY.
The INSURER shall look to resolve any matter as soon as possible and in any event within 15 days. The INSURER shall provide such complaints handling on behalf of the relevant Lloyd’s Managing Agent as specified in Item 11 of the SCHEDULE.
If you are not satisfied with the response from the INSURER or if you have not received a response within the required time frame then you may contact, if you wish, contact the Lloyd’s General Representative for your country who shall investigate and assess your complaint and shall aim to provide you with a response within 30 days. If you wish to contact the Lloyd’s Representative for your then the contact details may be found at: https://lloydseurope.com/contact/
Should you remain dissatisfied with the responses from any or all of the above parties (or if you have not received responses within the specified timeframes) then you may refer your complaint to the relevant regulator for your country. Please contact the INSURER for details of the relevant regulator in your country.
Nothing in this Complaints Procedure shall in any way affect your rights in law with respect to this POLICY.
5.14 Premium calculation
The Premium is calculated according to the following criteria:
1) The exposure related to the PROFESIONAL BUSINESS
2) The LIMIT OF LIABILITY
3) The DEDUCTIBLE
4) The overall and specific income values of the INSUREDS
5) The operational exposure of the INSUREDS
6) The insurance history of the INSURED
7) Territorial exposure
8) Number of EMPLOYEES
9) Any other relevant information specifically requested by the INSURER or otherwise available to the INSURER.
5.15 POLICY termination / renewal
This POLICY shall terminate at the POLICY PERIOD and shall not tacitly renew.
In the event that the POLICYHOLDER is acquired by a third party or merges with another party so that it is not the surviving entity, then this POLICY shall not terminate, however in such event the cover available under this POLICY is restricted to PROFESSIONAL BUSINESS committed or not committed prior to the date of such acquisition or merger.
5.16 Communication provisions
In respect of the notification of any CLAIM or CIRCUMSTANCE or other matter where cover under this POLICY is required, please refer to the Claim Notification section of this POLICY.
With respect to any complaint, request for information, other communication, the POLICYHOLDER should (via their intermediary if applicable) communicate with the INSURER using the contact details specified in Item 13 of the SCHEDULE or as detailed below:
Company Name: PROKOPIUS UAB, Address: S. Moniuškos 27, LT08115, Vilnius, LT Email: info@prokopius.com
5.17 Other Obligations and rights of the POLICYHOLDER
1. The POLICYHOLDER has the obligation to comply with the terms and conditions of this POLICY including the payment of premium and administration of the POLICY on behalf of the INSUREDS.
2. The POLICYHOLDER has the right to cancel this POLICY in accordance with the Cancellation Provisions that apply to this POLICY.
3. The POLICYHOLDER may not assign any rights under this POLICY without the prior written agreement of the INSURER which may only be given at the sole discretion of the INSURER
5.18 Other Obligations and rights of the INSURER
1. The INSURER has the obligation to provide payments under this POLICY when due.
2. The INSURER retains the right to cancel this POLICY in accordance with the Cancellation Provisions that apply to this POLICY
5.19 Contractual Terms, Collateral Warranties and Joint Ventures
INSURERS will not require construction contracts, collateral warranties, duty of care or joint venture agreements, letters of engagement, or terms of appointment to be shown to, or agreed by, them. However, the limitations appearing in extensions 2.2 (JV), 2.3 (Self employed) and 2.7 (vicarious) and in exclusion 3.5 (Contractual Liability) will apply in respect of liabilities incurred by the INSURED, in consequence of them signing such documents.
5.20 Prohibition of Insurance of Excess
The INSURED will not effect insurance in respect of any excess, to which this insurance may be subject, unless a specific mandatory policy.
DEFINITIONS AND INTERPRETATIONS
Various words and phrases have a standard meaning within this insurance and such definitions and interpretations are set out below. Headings and notes are for information purposes only and are not to be construed as part of this insurance. The following words and phrases are used in this insurance. In certain instances, the words may be used in the plural or singular form. Wherever they appear, they are deemed to have the meaning set out below:
6.1 INSURED
Will mean:
6.1.1 the INSURED COMPANY
6.1.2 the DIRECTORS of the INSURED COMPANY
6.1.3 the estate, heirs and executors of those parties mentioned in 6.1.1 - 6.1.2.
6.2 POLICYHOLDER
Will mean the entity, Specified in Item 1 of the SCHEDULE, including any predecessors in business.
6.3 INSURED COMPANY
Will mean the POLICYHOLDER and any practice or business for which the POLICYHOLDER is legally liable in consequence of the acquisition of such practice or business, prior to inception of this insurance, provided insurers have been notified in writing of the existence of such other practice or business and have agreed to insure such entities.
Any location of the practice is included within the definition, unless expressly stated otherwise.
6.4 DIRECTOR
Will mean any natural person who was, is or shall be any one or more of the following:
1) any de jure director of an INSURED COMPANY (including executive, non-executive and supervisory positions);
2) any de facto director of an INSURED COMPANY including shadow directors;
3) any EMPLOYEE in a managerial or supervisory position
6.5 EMPLOYEE
Will mean any natural person who was, is or shall be under a contract of employment with an INSURED in respect of the PROFESIONAL BUSINESS to the extent that they are not acting in the role of a DIRECTOR
6.6 PROFESSIONAL BUSINESS
Will mean performance by PROFESSIONAL STAFF, and/or their professional assistants of:
6.6.1 design, specification, inspection and/or supervision, feasibility studies, surveying where appropriate to the professional duties of the PROFESSIONAL STAFF, procurement and/or the provision of advice or technical information, or
6.6.2 such additional activities and duties declared to INSURERS. However, such activities and duties do not include supervision by the INSURED of its own or its sub-contractors’ work, where such supervision is undertaken in their capacity as building or engineering contractor. For the purpose of clarification, the activities and duties of a clerk of works, or similar person carrying out supervision of construction, will not be deemed to fall within the activities and duties of a building or engineering contractor.
6.7 PROFESSIONAL STAFF
Will mean those persons either qualified as architects, engineers or surveyors or having other professional qualifications appropriate to the activities and duties, or having a minimum level of experience of five years in undertaking the PROFESSIONAL BUSINESS.
6.8 CONSULTANTS
Will mean consultants, contractors, specialist designers or others appointed by the INSURED, in connection with their activities and duties.
6.9 LIMIT OF LIABILITY
Will mean the sum specified in Item 4 of the SCHEDULE, which is the maximum amount that the INSURER is liable for to indemnify the INSURED in respect of this POLICY,
For the avoidance of doubt, it should be noted that the indemnity afforded under the terms of this POLICY is provided jointly to all parties constituting the INSURED and for all purposes this POLICY shall be considered as a joint policy with one LIMIT OF INDEMNITY
6.10 DEFENCE COSTS
Will mean all costs and expenses incurred in the investigation, negotiation, administration, mitigation, defence or settlement of any CLAIM or CIRCUMSTANCE and/or the cost of representation at any enquiry or other proceedings, which have a direct or indirect relevance to the investigation, defence or settlement of any matter notified under the terms of this insurance which have been agreed as such in writing by the INSURER.
For the sake of clarity, DEFENCE COSTS do not include the salaries, wages, rent or other overheads of the INSURED or INSURER.
6.11 Pollution
Will mean any one or a combination of a release, emission, discharge, dispersal, disposal or escape of any process of substances, which are capable of causing material HARM to any person, living organism and/or the environment (including land, waters and atmosphere).
6.12 Harm
Will mean injury or impairment to the health of any living organism or interference with ecological systems of which they form part and, in the case of a person, includes offence caused to any of their senses.
6.13 Geographical Limits
Will mean the territorial limit specified in ITEM 7 of the SCHEDULE
6.14 Policy Period
Will mean the period of insurance specified in ITEM 3 of the SCHEDULE, plus any extensions to the period, which may be granted by INSURERS.
6.15 Documents
Will mean project models or displays, deeds, wills, agreements, maps, plans, records, photographs or negatives, written or printed books, letters, certificates or written or printed documents and/or forms of any nature whatsoever and will include computer software and systems records (electronic data will be deemed to be physical property for the purposes of this insurance). The definition excludes bearer bonds, coupons, bank or currency notes and other negotiable paper for which the INSURED is held legally liable and/or which are in the care, custody or control of the INSURED.
6.16 Data
Will mean information (including without limitation text, numbers, sounds and images) recorded in a form which can be processed by equipment operating automatically, in response to instruction given for that purpose which is held on a COMPUTER SYSTEM for which the INSURED is held legally liable and/or which are in the care, custody or control of the INSURED.
6.17 Defamation, Libel and Slander
Will mean any defamation, libel, slander uttered, malicious falsehood, negligent misstatement or misrepresentation or product disparagement, by the INSURED in the exercise and conduct of the PROFESSIONAL BUSINESS.
6.18 Circumstance
Will mean any matters of which the INSURED first becomes aware during the POLICY PERIOD, which may give rise to a CLAIM against the INSURED.
6.19 Computer System
Will mean any computer, data processing equipment, media or any of their parts, or system of data storage and retrieval, or communications system, network, protocol or any of their parts, or storage device, microchip, integrated circuit, real-time clock system or similar device, or any computer software (including but not limited to application software, operating systems, runtime environments or compilers), firmware or microcode.
6.20 Claim
Will mean any written demand:
1) made by or on behalf of a CLIENT or other third party; and
2) which demand is received by the INSURED during the POLICY PERIOD; and
3) which asserts a civil liability of the INSURED; and
4) which civil liability has its proximate cause in PROFESSIONAL BUSINESS provided in relation to a CLIENT.
6.21 Insurers
Will mean insurance carrier specified in Item 13 of the SCHEDULE.
6.22 Schedule
Will mean the page of this insurance wording entitled Schedule (before the addition of any endorsements or memoranda), which will provide details relative to the current policy period.
6.23 Retroactive Date
Will mean the date specified in Item 8 of the SCHEDULE
6.24 Proposal
Will mean the signed proposal and/or acceptance form provided to the POLICYHOLDER by the INSURER and subsequently submitted to the INSURER by (or on behalf of) the POLICYHOLDER
6.25 Policy
Will mean this wording and the SCHEDULE and the PROPOSAL
6.26 Client
Will mean any legal or natural person to the extent that they have been provided with or have failed to have been provided with PROFESSIONAL BUSINESS.
6.27 Loss
Will mean DEFENCE COSTS, settlements, damages, compensation, court awards, “peace agreement” amounts and arbitration costs and any other amount which is agreed to in writing by the INSURER incurred by or on behalf of an INSURED in respect of a CLAIM. LOSS shall NOT include any taxes unpaid by the INSURED, any fines, penalties or punitive damages or the multiple portion of any MULTIPLE DAMAGES AWARD.
6.28 Multiple Damages Award
Will mean an additional award made by a competent court in any jurisdiction which imposes a duty on the defendant to pay an amount which is a multiple of the original amount of damages calculated by the court and which constitutes an additional punishment on the defendant.
6.29 Collateral Warranties and Duty of Care Agreements
Will mean any contractual agreement, which acknowledges or accepts that the INSURED owes a duty of care to or is responsible for the losses of any party, other than the direct client of the INSURED, to whom services are being provided.
ENDORSEMENTS – CYBER LOSS EXTENSION
Subject to all terms, exclusions and conditions of this POLICY and subject to the Limit of Liability stated in this Extension, the INSURER agrees to indemnify the INSURED all sums which the INSURED shall become legally obligated to pay as LOSS, provided any CLAIM made to recover therefore is first made against the INSURED within the POLICY PERIOD due to a CYBER LOSS, and is notified by the INSURED to the INSURER during or within sixty (60) days after the expiration of the POLICY PERIOD.
With respect to coverage under this Extension only:
Additional Definitions
a. CYBER LOSS means any loss, damage, liability, expense, fines or penalties or any other amount directly caused by:
(i) the use or operation of any COMPUTER SYSTEM or COMPUTER NETWORK;
(ii) the reduction in or loss of ability to use or operate any COMPUTER SYSTEM, COMPUTER NETWORK or DATA;
(iii) access to, processing, transmission, storage or use of any DATA;
(iv) inability to access, process, transmit, store or use any DATA;
(v) any error or omission or accident in respect of any COMPUTER SYSTEM, COMPUTER NETWORK or DATA.
b. Computer Network means a group of COMPUTER SYSTEMS and other electronic devices or network facilities connected via a form of communications technology, including the internet, intranet and virtual private networks (VPN), allowing the networked computing devices to exchange DATA.
Additional Exclusions
The INSURER shall not be liable to make any payment for damages for the following types of loss, damage, or injury, whether caused or contributed to, in whole or in part, directly or indirectly, by risks otherwise insured under this POLICY:
a. any criminal investigations or proceedings or any civil investigations or proceedings initiated by a government agency or authority;
b. any expense to investigate or correct a deficiency in the INSURED’S systems, employee management, vendor management, internal systems, procedures, computer network or system firewalls, computer network or system antivirus or any other physical or procedural security which may have contributed to the CYBER LOSS;
c. reimbursement, compensation, benefits, fees or expenses incurred by the Insured or any of the INSURED’S employees;
d. any other expenses or costs not included within LOSS;
e. any consequential loss;
f. any threat, extortion or blackmail, including, but not limited to, ransom payments and private security assistance;
g. any expenses or costs incurred by a third party;
h. any alleged or actual CYBER LOSS arising from lost DATA where any Personally Identifiable Information stored was not encrypted.
Limit of Liability
EUR 50,000 each and every CLAIM and in the aggregate
The aggregate limit specified above is the total limit of the INSURERS’ liability for all Damages and Claims Expenses covered under this Extension and occurring during the POLICY PERIOD, and is part of and not in addition to the Aggregate LIMIT OF LIABILITY of this POLICY.
All other terms and conditions of this Insurance remain unchanged.
GENERAL LIABILITY EXTENSION
Subject to all terms, exclusions and conditions of this POLICY and subject to the Limit of Liability stated in this Extension, the INSURER agrees to indemnify the INSURED all sums which the INSURED shall become legally obligated to pay as LOSS, provided any CLAIM made to recover therefore is first made against the INSURED within the POLICY PERIOD due to an EVENT, and is notified by the INSURED to the INSURER during or within sixty (60) days after the expiration of the POLICY PERIOD.
With respect to coverage under this Extension only:
Amended Definitions:
For the purpose of this Extension only, the following definitions are amended to read as follows: INSURED means:
1) any INSURED COMPANY;
2) any INSURED PERSON in their capacity as such;
3) any other legal entity or natural person agreed to in writing by the INSURER and endorsed to this POLICY. LOSS means any amount incurred by or on behalf of an INSURED in respect of an EVENT. LOSS shall include, inter alia, settlements, damages, compensation, court awards, “peace agreement” amounts and arbitration costs.
LOSS shall not include DEFENCE COSTS, any taxes unpaid by the INSURED, any fines, penalties or punitive damages or the multiple portion of any MULTIPLE DAMAGES AWARD. LOSS shall form part of the LIMIT OF LIABILITY.
Additional Definitions:
DAMAGE means loss of possession or control of or actual damage to tangible property EVENT means the INSURED’S liability to pay damages (including claimant’s costs, fees and expenses) arising from INJURY or DAMAGE but not to the extent that such INJURY or DAMAGE arises from either:
1) POLLUTION
2) A PRODUCT
3) INJURY to an EMPLOYEE That arises from the PROFESSIONAL BUSINESS and which occurs after the RETROACTIVE DATE.
INJURY means death bodily injury illness or disease of or to any person INSURED PERSON means
1) any EMPLOYEE,
2) any DIRECTOR,
3) any natural person for whom an INSURED is liable with respect to the PROFESSIONAL BUSINESS;
4) the heirs, spouse or estate of any other INSURED PERSON as set out in 1) to 3) above but only to the extent that they are held liable for the actions of such other INSURED PERSON
PRODUCT means any property after it has left the custody or control of the INSURED which has been designed, specified, formulated, manufactured, constructed, installed, sold, supplied, distributed, treated, serviced, altered or repaired by or on behalf of the INSURED, but shall not include food or drink supplied by or on behalf of the INSURED primarily to the INSURED’S EMPLOYEES as a staff benefit.
Amended Exclusions:
Solely in respect of the cover afforded by virtue of this Endorsement, Exclusion 3.18 - Bodily Injury and/or Property Damage shall not apply to an EVENT.
Additional Exclusions:
Auto liability
The INSURER shall not pay LOSS or DEFENCE COSTS or any other amount arising out of the ownership, possession or use of any motor vehicle or trailer by or on behalf of the INSURED.
This exclusion shall not apply to the following:
1) an ACTIVITY EVENT caused by the use of any tool or plant forming part of or attached to or used in connection with any motor vehicle or trailer;
2) an ACTIVITY EVENT arising beyond the limits of any carriageway or thoroughfare and caused by the loading or unloading of any motor vehicle or trailer;
3) for DAMAGE to any bridge, weighbridge, road or anything beneath caused by the weight of any motor vehicle or trailer or the load thereon;
4) an ACTIVITY EVENT arising out of any motor vehicle or trailer temporarily in the INSURED’S custody or control for the purpose of parking.
Watercraft
The INSURER shall not pay LOSS or DEFENCE COSTS or any other amount arising out of the ownership possession or use by or on behalf of the INSURED of any aircraft, watercraft or hovercraft (other than watercraft not exceeding five metres in length and then only whilst on inland waterways).
Leased property
The INSURER shall not pay LOSS or DEFENCE COSTS or any other amount arising out of DAMAGE to property owned leased or hired or under hire purchase or on loan to the INSURED or otherwise in the INSURED’S care, custody or control.
This exclusion shall not apply to:
1) premises (or the contents thereof) temporarily occupied by the INSURED for work therein (but no indemnity is granted for DAMAGE to that part of the property on which the INSURED is working and which arises out of such work);
2) clothing and personal effects belonging to EMPLOYEES and/or to visitors to the INSURED;
3) premises tenanted by the INSURED to the extent that the INSURED would be held liable in the absence of any specific agreement.
Communicable Disease
1. Notwithstanding any provision to the contrary within this policy, this policy does not cover all actual or alleged loss, liability, damage, compensation, injury, sickness, disease, death, medical payment, defence cost, cost, expense or any other amount, directly or indirectly and regardless of any other cause contributing concurrently or in any sequence, originating from, caused by, arising out of, contributed to by, resulting from, or otherwise in connection with a Communicable Disease or the fear or threat (whether actual or perceived) of a Communicable Disease.
2. For the purposes of this endorsement, loss, liability, damage, compensation, injury, sickness, disease, death, medical payment, defence cost, cost, expense or any other amount, includes, but is not limited to, any cost to clean-up, detoxify, remove, monitor or test for a Communicable Disease.
3. As used herein, a Communicable Disease means any disease which can be transmitted by means of any substance or agent from any organism to another organism where:
3.1. the substance or agent includes, but is not limited to, a virus, bacterium, parasite or other organism or any variation thereof, whether deemed living or not, and
3.2. the method of transmission, whether direct or indirect, includes but is not limited to, airborne transmission, bodily fluid transmission, transmission from or to any surface or object, solid, liquid or gas or between organisms, and
3.3. the disease, substance or agent can cause or threaten bodily injury, illness, emotional distress, damage to human health, human welfare or property damage.
Asbestos
The INSURER shall not pay LOSS or DEFENCE COSTS or any other amount arising out of the existence of or exposure to asbestos and/or any asbestos containing materials in whatever form or quantity.
Limit of Liability
EUR 1,000,000 each and every CLAIM and in the aggregate The aggregate limit specified above is the total limit of the INSURERS’ liability for all Damages and Claims Expenses covered under this Extension and occurring during the POLICY PERIOD, and is part of and not in addition to the Aggregate LIMIT OF LIABILITY of this POLICY.
All other terms and conditions of this Insurance remain unchanged.