Public & Products Liability Insurance Policy - Polis Asuransi Publik dan Produk liability

Public & Products Liability
Insurance Policy

In consideration of the payment of premium and in reliance on the contents of the proposal and any other
information submitted by or on your behalf, we will indemnify you in accordance with the terms of this policy. The
policy includes this document and the General Terms & Conditions Section attached to this policy, and the policy
should be interpreted with the General Terms and Conditions. Our total aggregate liability under each insuring
clause will not exceed the sub-limit specified in the schedule. Each Insuring Clause and Extension is subject to the
excess specified in the schedule.

SECTION 1: INSURING CLAUSES

1.1 Public Liability Cover

We will pay on behalf of an insured their loss in respect of any personal injury or property damage for
public liability arising from an occurrence in connection with the business during the insurance period.

1.2 Product Liability Cover

We will pay on behalf of an insured their loss in respect of any personal injury or property damage for
product liability arising from an occurrence in connection with the business during the insurance period.

1.3 Advertising Liability

We will pay on behalf of an insured their loss for advertising liability arising from an occurrence in connection with the business during the insurance period.

1.4 Defence Costs In Addition

We will pay defence costs arising from a covered loss for personal injury or property damage in addition to the limit of liability for Insuring Clause 1.1 (Public Liability Cover), Insuring Clause 1.2 (Product Liability Cover) and Insuring Clause 1.3 (Advertising liability) of this policy.

Provided that we are not obligated to pay any defence costs after the limit of liability shown in the schedule under Insuring Clause 1.1 (Public Liability Cover), Insuring Clause 1.2 (Product Liability Cover) or Insuring Clause 1.3 (Advertising liability) has been exhausted.

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SECTION 2: EXTENSIONS OF COVER

Our total aggregate liability under each Extension of Cover will not exceed the sub-limit specified in the schedule. Each Extension of Cover is subject to the excess and sub-limit specified in the schedule.

Extensions Applicable to All Insuring Clauses

2.1 Advancement of Defence Costs and Investigation Costs

We will advance costs as incurred prior to a final determination or adjudication of a claim or up until the time that a claim is withdrawn. If such a claim is finally determined not to be covered under this policy or is excluded under this policy then all costs already advanced must be repaid to us.

2.2 Automatic acquisition or creation of subsidiaries

If during the insurance period the insured creates or acquires a new subsidiary, then such new subsidiary will be automatically covered under this policy unless that new subsidiary is incorporated or domiciled in the USA.

If any new subsidiary is not eligible for automatic coverage due to this condition, then the policyholder may provide us with sufficient details in respect of the new subsidiary for us to assess and evaluate any increase in risk. We may then agree, with reasonable consideration, to extend cover in return for the payment of additional premium and any amendments to the terms of this policy.

Cover for any new subsidiary will apply solely in respect of loss arising from conduct on or after the effective date of incorporation or acquisition of such new subsidiary.

2.3 Care, Custody & Control

We will pay for property damage to property in your care custody or control for:

a) premises or the contents of premises occupied by you;

b) vehicles (other than Vehicles Owned or used by you or your behalf), but only whilst such vehicles

are in a car park owned or operated by you other than for income or reward as a car park operator;

b) clothing and personal effects belonging to your employees and visitors; or

c) other property temporarily in your physical or legal control, but not for property in respect of physical

damage to, destruction of or loss of that part of any property upon you are working and the loss arises from the performance of such work

This extension does not apply to liability assumed by the Insured Person under any contract or agreement which requires the Insured Person to effect material damage insurance on premises, property or goods not owned by the Insured.

2.4 Court Attendance Costs

We will pay the policyholder for court attendance costs.

2.5 Emergency Costs

If written consent from us cannot reasonably be obtained prior to costs being incurred by an insured, we automatically grant retrospective approval for such costs of up to 10% of the limit of liability (or relevant sub-limit, whichever is the lower amount) in the aggregate for all claims made during the insurance period provided consent is obtained from us within 30 days of costs being incurred. Any amounts paid under this Extension are part of and not in addition to the limit of liability.

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2.6 Principal’s Indemnity

We agree to indemnify every principal in respect to the principal’s vicarious liability arising out of:

(a) the negligent performance by or on behalf of the insured of any contract or agreement for the

performance of work for such principal; or

(b) any products sold or supplied by the insured, but only in respect of the insured’s own acts or failure

to act in connection with such products;

This does not extend to the liability of any principal howsoever arising out of the negligence, breach of contract or a breach of duty of such principal.

2.7 Public Relations Costs

We will pay the public relations costs of an insured following a claim covered by the policy.

2.8 Tenants Liability

We agree to indemnify any lessor with whom the policyholder has entered into an agreement for the rental
or lease of premises in connection with the business. Cover available to the lessor is on terms no wider
than would have been provided in this policy to the policyholder if the policyholder had been held legally
liable for the same loss.

2.9 Vicarious Liability

We agree to indemnify you for your vicarious liability for any conduct of your:

(a) agents;

(b) contractors; or

Value Added Benefits

2.10 Contract Review

The policyholder is entitled to use the ProRisk Contract Review Service for four (4) contract reviews for the insurance period. The Contract Reviews relate only to the provisions of the Contract that might affect the Insured’s insurance.

2.11 Panel Counsel

The policyholder is entitled to one (1) hour free advice from any one firm listed on our panel of solicitors relating to a matter which we have accepted as notification of circumstances which may give rise to a claim. We consent to that firm listed on our panel of solicitors being retained to act for an insured in respect of any claim covered by this policy.

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SECTION 3: EXCLUSIONS

We will not be liable under this policy to make any payment for loss:

3.1 Abuse

on account of any claim based upon, arising from or in consequence of, or in any way connected with any actual or alleged verbal, physical or sexual abuse, molestation, assault, battery or any violence committed by an insured person. This Exclusion will not apply to the vicarious liability of the policyholder if they were not aware of such conduct at the time.

3.2 Advertising Liability

for advertising liability:

(a) resulting from statements made at your direction with knowledge that such statements are false.

(b) resulting from failure of performance of contract but this exclusion will not apply to claims for

unauthorised appropriation of advertising ideas contrary to an implied contract.

(d) failure of your products or services to conform with advertised performance, quality, fitness or

durability.

(e) incurred by any insured whose principal occupation or business is advertising, broadcasting,

publishing or telecasting.

3.3 Alcohol, illegal drugs, narcotics and intoxicants

directly or indirectly caused by, contributed to by, or arising out of or in connection with you being under the influence of alcohol, illegal drugs, intoxicants or narcotics.

3.4 Assumed Liability

directly or indirectly attributable to or in consequence of any actual or alleged breach of an obligation assumed by the insured under any agreement, except that this Exclusion does not apply to:

(a) any liability which is, or would have been, implied by law in such agreement or would have arisen

separately from it; or

(b) any liability arising from a lease of premises used by the business, provided that our liability will not

extend beyond that assumed under standard industry contracts or for any obligation by you to insure the premises.

3.5 Aviation Products

arising from the sale, manufacture or importation of any product which is intended to be incorporated into the structure, machinery, electronics or controls of any aircraft or spacecraft.

3.6 Care Custody and Control

for property damage to property in your care custody of control, other than provided for in Extension 2.3 (Care, Custody & Control)

3.7 Cyber Liability

directly or indirectly based upon, arising from or in consequence of a cyber incident.

3.8 Defamation, Libel or Slander

based upon, arising from or in consequence of the actual or alleged defamation, libel or slander of a third party by an insured, unless arising out of an advertising liability.

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3.9 Dishonest or wilful acts

based upon, arising from or attributable to the:

(a) dishonest, fraudulent or criminal acts, errors or failure to act;

(b) wilful breach of any statute, contract, agreement or duty; or

of an insured.

3.10 Electronic Data

for the communication, display, distribution or publication of electronic data.

This exclusion does not apply to:

(a) personal injury or the total or partial destruction, distortion, erasure, corruption, alteration,

misrepresentation or misappropriation of electronic data;

(b) an error in creating, amending, entering, deleting or using electronic data; or

at all.

3.11 Employment Liability

for any claim based upon, arising from, or attributable to:

(a) an employment practices wrongful act; or

(b) liability for any personal injury to any employee arising out of;

(i) the course of their employment;

(ii) any other liability imposed by any workers compensation law; or

(iii) any other liability imposed by the provision of any industrial award, agreement or

determination or any contract of employment or workplace agreement where such liability would not have been imposed in the absence of such industrial award, agreement or determination, or any such contract of employment or workplace agreement.

3.12 Faulty Workmanship

for reperforming, correcting or improving any work undertaken by the insured in the course of the business.

3.13 Loss of Use

for the loss or loss of use of tangible property, which is due to the actual or alleged:

(a) delay in or lack of performance by an insured or their agent under any contract or agreement; or

(b) failure of any products or work performed by an insured or their agent, to meet the level of

performance, quality, fitness or durability expressly or impliedly warranted or represented.

This Exclusion does not apply to property loss resulting from the sudden, unexpected and unintended physical damage to or loss or destruction of products or work performed by an insured or on their behalf after such products or work have or has been used by a third party.

3.14 Product Damage, Product Recall or Product Guarantee

based upon, arising from or in consequence of the actual or alleged:

(a) damage to a product; or

(b) product recall; or

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3.15 Professional Services

based upon, arising from, or in consequence of the rendering of or failure to render professional advice or
services by the insured or any error or failure to act connected with the provision of professional advice or
services.

3.16 Property Owned by You

for property damage or property owned by you.

3.17 Territorial Limits

arising from any occurrence outside of the territorial limits.

3.18 Vehicles

(a) arising from the ownership, possession or use by or on your behalf of any motor vehicle or trailer for

which compulsory insurance is required by law, other than claims arising from damage to any motor vehicle or trailer temporarily in your custody or control for the purpose of parking; or

(b) arising from the ownership, possession or use by or on your behalf of any aircraft, watercraft or

hovercraft, spacecraft or other vehicle.

SECTION 4 - DEFINITIONS

Please refer to the General Terms and Conditions for any definitions not listed below.

4.1 Advertising liability means any liability of the insured arising out of actual or alleged:

(a) unintentional breach of the misleading or deceptive conduct provisions of the Competition and

Consumer Act 2010 (Cth.) or any Fair Trading or similar legislation of any State or Territory of
Australia; or

(b) infringement of copyright or passing off of title or slogan; or

(d) invasion of privacy; or

(e) defamation, libel or slander

committed or alleged to have been committed during the insurance period in any advertisement, publicity
article, broadcast or telecast and caused by or arising out of the advertising activities of the business.

4.2 Benefits means any obligation to pay superannuation or pension entitlements, which constitutes money or

property or other entitlement.

4.3 Business means the business conducted by you as stated in the schedule, and includes:

(a) property ownership and office occupation by you for the purposes of the business; and

(b) a canteen, social or sporting club or first aid, provided by you and incidental to the business.

4.4 Civil liability means the actual or alleged liability of the insured other than a criminal liability.

4.5 Claim means:

(a) any written demand for compensation, monetary damages or other relief, including non-monetary

relief, made against an insured;

(b) any formal written notice of an alternative dispute resolution proceeding, including but not limited to

a conciliation, mediation or arbitration.

(d) an investigation;

brought by a third party.

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4.6 Computer system means all electronic computers owned or operated by the insured including operating

systems, software, electronic communication systems and software or websites owned or operated by the insured and data storage computers or software.

4.7 Costs means investigation costs and defence costs, provided that we have consented in writing prior to

such costs being incurred. We will not unreasonably withhold that consent.

Costs does not mean any overheads of the policyholder or any salaries, commissions, expenses or other benefits associated with the remuneration of the insured persons.

4.8 Court attendance costs means:

(a) the reasonable out of pocket expenses; and

(b) the equivalent daily salary;

incurred by an insured person in attending Court when legally compelled to do so, or at the reasonable request of solicitors acting for an insured in relation to a covered claim under this policy.

4.9 Cyber incident means any actual or suspected:

(a) data breach; or

(b) unauthorised access to a computer system including:

(i) ransomware attack;

(ii) cyber extortion;

(iii) hacking attack;

(iv) malware infection;

(v) phishing attack;

(vi) telephone hacking;

(vii) denial of service attack;

(viii) computer virus;

(ix) cryptojacking; or

(x) a credential compromise of software used by the insured.

4.10 Defence Costs

means all reasonable fees, costs and expenses in the defence, investigation, adjustment, challenging, resisting or appeal of any claim.

4.11 Data breach means an actual or suspected unauthorised disclosure of information retained by the insured:

(a) arising from unauthorised access to a computer system; or

(b) unauthorised or accidental disclosure by an employee.

4.12 Director or officer means any natural person who was prior to, is or becomes during the insurance period:

(a) a director, officer, partner, manager or trustee of the policyholder or subsidiary;

(b) a shadow director of the policyholder but only where such shadow director is also a person

described in sub-paragraph (a) above;

(i) carries out a managerial or supervisory function for the policyholder;

(ii) is joined as a party to any claim against any person defined above;

(d) the lawful spouse of a person defined above, where recovery is sought solely because joint property

is held or owned by or on behalf of the spouse or domestic partner and not in respect of any conduct by that person in his or her own right; or

(e) the legal representatives, heirs, assigns or estates of a person defined above in the event of that

person’s death, incapacity, insolvency or bankruptcy.

This definition does not include external auditors of the policyholder and does not include any liquidator, trustee, receiver and manager, administrative receiver, supervisor, mortgagee in possession or other insolvency office-holder of the policyholder or the assets of the policyholder.

4.13 Electronic Data means facts, concepts and information converted to a form usable for communications,

display, distribution, interpretation or processing by electronic and electromechanical data processing or
electronically controlled equipment and includes programmes, software and other coded instruction for such
equipment.

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4.14 Employee means:

(a) any natural person full-time, part-time, casual, seasonal or temporary worker of the policyholder

who is employed under a contract of service with the policyholder and is compensated by way of salary, wages and/or commissions;

(b) any work experience staff member, intern or volunteer of the policyholder under the direction and

control of the policyholder;

whether they are paid, or not; or

(d) in relation to insurance clause 1.4 (Employee Fidelity Cover), the employee must also be under the

direction and control of the policyholder.

For the avoidance of doubt, employee does not include independent contractors or labour hire personnel.

4.15 Employment practices wrongful act means any actual or alleged violation of employment laws or any

other employment related obligation or matter including but not limited to any actual or alleged:

(a) employment-related:

(i) sexual or other unlawful harassment (including bullying);

(ii) unlawful discrimination;

(iii) denial of natural justice;

(iv) defamation;

(v) invasion of privacy;

(b) unlawful termination of employment;

(d) failure to employ, promote or grant tenure;

(e) unfair deprivation of career opportunity;

(f) unfair discipline or evaluation of employment performance;

(g) failure to provide or adhere to adequate employment policies or procedures;

(h) violation of any Federal, State or Local statute or regulation governing employment practices; or

(i) breach of employment contract;

with respect to any natural person who was, now is or becomes an employee of the policyholder, including prospective employee.

4.16 Employment related benefits means any:

(a) salary, wages and/or commissions;

(b) a special right, a privilege, or a fringe benefit;

(d) bonuses;

(e) equitable interest/s; or

(f) incentive or deferred compensation;

payable to an employee.

4.17 Insured, you and your means:

(a) the policyholder;

(b) any subsidiaries of the policyholder;

(d) a principal; or

(e) a landlord.

4.18 Insured person means:

(a) any director;

(b) officer;

(d) proprietor;

(e) employee; or

(f) student.

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4.19 Investigation means any formal investigation, inquiry or examination by an official body, which the insured

is legally compelled to comply with and is commenced by written notice. For the avoidance of doubt, an investigation does not include a risk management visit (or equivalent) by an official body.

4.20 Investigation costs means reasonable legal fees, costs and expenses incurred by the insured persons in

their representation (or in preparation for their representation) at an investigation in which the insured persons first become involved during the insurance period.

Investigation costs does not include wages, salaries or other remuneration, internal costs or overheads of any insured.

4.21 Landlord means the landlord and property owner of premises.

4.22 Loss means the amount, including costs, damages, judgments, settlements or reasonable fees incurred on

account of a claim made during the insurance period.

Loss does not include:

(a) matters uninsurable under the law applicable to this policy;

(b) punitive, exemplary or aggravated damages, or the multiple portion of any multiplied damages award;

revenue or impost;

(d) criminal fines or criminal penalties;

(e) civil fines or civil penalties;

(f) employment related benefits;

(g) any liability or costs incurred in connection with any educational, sensitivity or other corporate

programme, policy or seminar relating to an employment practices wrongful act or the costs of

reinstatement of any employee;

(h) any refund of fees;

(i) internal or overhead expenses of any insured;

(j) the cost of complying with any non-monetary order or non-monetary relief;

(k) benefits;

(l) any actual or alleged violation of the responsibilities, obligations or duties imposed by any law,

regulation or bylaw relating to vehicular, air or marine traffic and any amendments to that law,

regulation or bylaw;

(m) liquidated damages; or

(n) any actual or alleged violation of the responsibilities, obligations or duties imposed by Sections 182,

183, 601FD, 601FE, 601JD of the Corporations Act 2001 (Cth), or any similar law anywhere in the world, and any amendments to that Act, - including duties of directors, officers and employees to not misuse their position or information, duties of a member of a scheme's compliance committee and the duties of officers and employees of a responsible entity.

4.23 Maximum aggregate limit of liability means the total amount payable under this policy as stated in the

schedule, including all reinstatements.

4.24 Occurrence means an event, including continuous or repeated exposure to substantially the same general

conditions, which results in personal injury and/or property damage and/or advertising liability that is neither expected or intended by the insured.

With respect to personal injury and/or property damage, all events of a series consequent upon or attributable to one source or original cause will be deemed to be one occurrence.

All advertising liability arising out of the same injurious material or act (regardless of the frequency or repetition of such injurious material or act, the volume or kind of media used, or the number of claimants, will be deemed to be one occurrence.

4.25 Official body means any regulator, state or administrative body or agency, official trade body or self-

regulatory body legally empowered to investigate the affairs of the policyholder or the conduct of an insured person in their insured capacity.

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4.26 Partner means the natural persons as the policyholder and any natural person who in the past, present or

future trades in partnership with the policyholder as specified in the schedule, in his or her capacity as
such.

4.27 Personal injury means:

(a) bodily injury, death, sickness, disease, disability, shock, fright, mental anguish and mental injury;

(b) false arrest, false imprisonment, wrongful detention, malicious prosecution and humiliation;

(d) assault and battery committed by the insured for the purpose of preventing or eliminating danger to

persons or property.

In the event of personal injury arising from latent injury, latent sickness, latent disease or latent disability, that personal injury will be deemed to have occurred on the day the injury, sickness, disease or disability was first medically diagnosed.

4.21 Premises means the place or places where the policyholder and/or its subsidiaries conduct their

business.

4.22 Principal means the head contractor, who has sub-contracted the supply of goods and/or services to the

policyholder or its subsidiaries for the performance of work for such principal, but only to the extent required by such contract or agreement and in any event only for such coverage and limit of liability as is provided by this policy.

4.23 Product liability means your actual or alleged civil liability in respect of personal Injury and/or property

damage caused by or arising out of any products sold or otherwise supplied by you to a third party.

4.24 Product recall means any form of loss arising out of the withdrawal, recall, inspection, repair,

reconditioning, modification, reinstallation, replacement or loss of use of any products where such products
are withdrawn or recalled from the market because of any actual, alleged or suspected defect or deficiency.

4.28 Products means anything manufactured, constructed, erected, assembled, installed, grown, extracted,

produced or processed, treated, altered, modified, repaired, serviced, bottled, labelled, handled, sold,
supplied, re-supplied or distributed, imported or exported, by you or on your behalf, including discontinued
products.

Products does not include:

(a) food and beverages supplied by you or on your behalf to your employees; or

(b) any item sold via a vending machine, which you do not wholly own and operate.

4.29 Property means money, securities and other property owned by the policyholder or for which it is legally

liable.

4.30 Property damage means physical loss, damage or destruction of tangible property owned by a third party,

including the resultant loss of use, or loss of use of tangible property which has not been physically damaged or destroyed. In the event of a claim arising from latent damage or from the exposure of tangible property to gradual deterioration and eventual damage, such property damage will be deemed to have occurred on the day such deterioration or damage was first discovered.

4.31 Proprietor means the natural person as the policyholder as specified in the schedule, in his or her capacity

as such.

4.32 Public liability means your actual or alleged civil liability in respect of personal Injury and/or property

damage sustained by a third party while on your premises or as a result of the conduct of the business.

4.33 Public relations costs means any reasonable fees, costs and expenses of a public relations consultant

retained with our prior written consent (which will not be unreasonably delayed or withheld).

4.34 Spouse means a past or present lawful spouse, domestic partner (including, without limitation, same sex

partner) or any person deriving similar status by reason of the common law or statute in Australia.

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ABN 80 103 953 073

AFSL 308076

1300 PRO INS (1300 776 467)
enquiries@prorisk.com.au
www.prorisk.com.au

Level 2, 115 Bridge Street
Richmond VIC 3121

Find us on

General Terms & Condition

Contents

SECTION 1: IMPORTANT INFORMATION 3

1.1 This Policy 3

1.2 Limit of Liability and Excess 3

1.3 ProRisk 3

1.4 Claims Made Policy (Facts Prior to

Commencement of Policy) 3

1.5 Insurer may not refuse to pay a claim in

certain circumstances 4

1.6 Your Duty of Disclosure 4

1.7 Non-Disclosure 4

1.8 Waiver of Rights of Subrogation 4

1.9 Privacy Statement 4

1.10 General Insurance Code of Practice 5

1.11 Financial Hardship 5

SECTION 2: CLAIM REPORTING 5

2.1 Notification 5

2.2 Written Notice 5

SECTION 3: CONSENT AND LEGAL

REPRESENTATION 6

3.1 Consent 6

3.2 Legal Representation 6

SECTION 4: GENERAL CONDITIONS 7

4.1 Allocation 7

4.2 Alteration or Assignment of Interest 7

4.3 Alteration to Risk and Change in Exposure 7

4.4 Complaints Handling & Dispute Resolution 8

4.5 Goods & Services Tax 8

4.6 Interpretation, Governing Law and

Jurisdiction, and Assumptions 8

4.7 Non-Avoidance 8

4.8 Non-Imputation 9

4.9 Order of Payment 9

4.10 Other Insurance 9

4.11 Policy Cancellation 9

4.12 Retroactive Liability 9

4.13 Representations 9

4.14 Subrogation 10

SECTION 5: GENERAL EXCLUSIONS 10

5.1 Asbestos & Toxic Dust 10

5.2 Nuclear 10

5.3 Pollution 10

5.4 Sanctions Limitation 10

5.5 War, Terrorism and Unlawful Acts 10

SECTION 6: GENERAL DEFINITIONS 11

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SECTION 1: IMPORTANT INFORMATION

1.1 This Policy

The policy wording, schedule and the General Terms and Conditions, together set out the cover provided, the amount insured and the terms and conditions of your insurance.

Please read these documents carefully and keep them in a safe place.

Words appearing in bold text have defined meanings in the policy. When reading the policy please make sure that you refer to the various definitions to ensure that you understand what is being said.

Where you have purchased more than one policy from us these General Terms and Condition need to be
read together as one document for each and every policy purchased. Each policy is a separate policy of
insurance.

Your insurance broker has arranged this policy for you. If you have any questions about your cover, or you wish to contact ProRisk, please contact your Insurance Broker for assistance.

Coverage commences upon payment of the premium.

1.2 Limit of Liability and Excess

The limit of liability is the maximum liability for all loss under the policy during the insurance period.

Any sub-limit of liability specified in the policy or schedule will be part of and not in addition to the limit of
liability. If more than one limit of liability or sub-limit of liability is applicable to a claim, then the total
payment by us will not exceed the highest of the applicable limits of liability or sub-limits of liability.

We are only liable to pay to the extent that any loss under the policy exceeds the amount of the excess.

All covered loss arising out of, based upon, in connection with, or otherwise attributable to: the same act, error, failure to act, event, circumstance or claim; or causally connected or interrelated acts, errors, failures to act, events, circumstances or claims that have as a common nexus any fact, circumstance, situation or event, will constitute a single policy claim for the purposes of this policy regardless of whether the same or different parties, claimants or causes of action are involved. In this case, the excess, which will be the highest applicable, will apply once to any such single policy claim and the single applicable limit of liability or sublimit of liability will apply to such single policy claim.

All causally connected or interrelated acts, errors, failures to act, events, circumstances or claims that constitute such a single policy claim shall be considered to have occurred, been discovered or made (as applicable) and reported to us at the time the required notice with respect to the first of such acts, errors, failures to act, events, circumstances or claims was first given to us.

Where an insured is entitled to indemnity for a claim under one or more insuring clauses, sub-limits or extensions under the policy, then the insured is only entitled to claim under one of those insuring clauses, sub-limits or extensions and must elect under which one they choose to seek indemnity.

1.3 ProRisk

ProRisk is an underwriting agency and has authority to bind this policy on behalf of the underwriters.

1.4 Claims Made Policy (Facts Prior to Commencement of Policy)

A claims made policy does not provide cover for any claims made against you during the insurance period if at any time prior to the commencement of the insurance period you were aware of facts which might give rise to those claims being made against you.

Section 40(3) of the Insurance Contracts Act 1984 provides that where the insured gives notice in writing
to the insurer during the insurance period of facts that might give rise to a claim against the insured, the

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insurer cannot refuse to pay a claim which arises out of those facts, by reason only that the claim is made after the insurance period has expired.

This means that if during the insurance period you became aware of any facts that might give risk to a claim it is in your interest to inform us of those facts. This will serve to protect your rights to make a later claim that has arisen from those notified facts.

1.5 Insurer may not refuse to pay a claim in certain circumstances

Section 54 of the Insurance Contracts Act 1984 provides that we may not refuse to pay a claim in certain circumstances:

(a) by reason only of an act (or failure to act) of you or another person, if that act (or failure to act), which

occurred after the policy was entered into, did not cause any part of the loss giving rise to the claim.
For example, if you have failed to satisfy a technical requirement of the policy but able to prove that
this technical breach could not reasonably to be said to have caused or contributed to the loss that
is the subject of your claim, we may not refuse the claim based on the technical breach on your
part; or

(b) where the act was necessary to protect a person's safety, to preserve property or if it was not

reasonably possible for the person not to do the act.

We can reduce our liability for the claim by the amount that fairly represents the extent to which we were prejudiced as a result of your actions or your failure to act.

1.6 Your Duty of Disclosure

Section 21 of the Insurance Contracts Act 1984 provides that before you enter into a contract of general insurance with an insurer, you have a duty to disclose to the insurer every matter that you know, or could reasonably be expected to know, is relevant to the insurer’s decision whether to accept the risk of the insurance and, if so, upon what terms. You have the same duty to disclose those matters to us before you renew, extend, vary or reinstate a contract of general insurance.

Your duty, however, does not require disclosure of a matter:

(a) that diminishes the risk to be undertaken by us;

(b) that is of common knowledge;

(d) where we waive your duty of disclosure.

1.7 Non-Disclosure

If you fail to comply with your duty of disclosure, we may be entitled to reduce our liability under the policy or we may cancel the contract. If your non-disclosure is fraudulent, we may also have the option of avoiding the contract from its beginning.

1.8 Waiver of Rights of Subrogation

You must not, without our prior written consent, enter into any contract or agreement which excludes, limits or prejudices a right of recovery which you may have in respect of any claim covered under this policy. Our consent will not be unreasonably withheld. Further, you must not do anything or fail to do anything which excludes, limits or prejudices our rights of subrogation. This term is subject to section 54 of the Insurance Contracts Act 1984 (Cth) which limits our right to refuse to pay a claim.

1.9 Privacy Statement

ProRisk is bound by the obligations of the Privacy Act 1988 (as amended) regarding the collection, use, disclosure and handling of personal information.

We collect personal information about you to enable us to provide you with relevant products and services,
to assess your application for insurance and, if a contract is entered, to enable us to provide, administer,
and manage your policy, and to investigate and handle any claims under your policy. We may disclose
your information to third parties (who may be located overseas), such as underwriters, lawyers, claims
adjusters, and others appointed by ProRisk or by underwriters to assist us in providing relevant products
and services. We may also disclose your information to people listed as co-insured on your policy and to

ProRisk General Terms & Conditions v04.22 4 of 14

your agents or broker. By providing your personal information to us, you consent to us making these
disclosures.

If you do not provide all or part of the information required, we may not be able to provide you with our products and services, consider your application for insurance, administer your policy, assess or handle claims under your policy, or you may breach your duty of disclosure.

When you provide us with personal information about other individuals, we rely upon you to have made
them aware of that disclosure, and of the terms of the ProRisk Privacy Statement, and to have obtained
their consent. For a copy of the ProRisk Privacy Statement or to request access to or update your personal
information, contact the Privacy Officer at ProRisk by email: enquiries@prorisk.com.au or by mail at the
address shown on this policy.

1.10 General Insurance Code of Practice

ProRisk and underwriters proudly support the General Insurance Code of Practice (‘the Code’).

The purpose of the Code is to raise standards of practice and service in the general insurance industry.
A copy of the Code can be obtained from the website www.codeofpractice.com.au.

This policy is compliant with the General Insurance Code of Practice.

1.11 Financial Hardship

We will review any Financial Hardship application in accordance with the General Insurance Code of Practice and any applicable guidelines.

1.12 Terms and Conditions

Except for these General Terms and Conditions or unless stated to the contrary in any policy, the terms and
conditions of each policy will apply only to that policy. The General Definitions apply to all policies in
addition to any specific definitions that may apply in each policy. If any provision in these General Terms
and Conditions is inconsistent or in conflict with the terms and conditions of any policy, the terms and
conditions of such policy will prevail for purposes of that policy. Any words in bold print in these General
terms and Conditions not defined will have the meaning indicated in the definitions section of the relevant
policy.

SECTION 2: CLAIM REPORTING

Each policy wording to which these General Terms and Conditions apply will specify in the Insuring Clause or Extension the basis for claims reporting and notification which is outlined in clauses 2.1 (Notification - Claims Made and Notified), 2.2 (Notification - Discovery), and 2.3 (Notification - Occurrence Based)

2.1 Notification

The policyholder will notify us of any claim, investigation, occurrence or direct financial loss or other matter that may be claimed under this policy as soon as is reasonably practicable after they first became aware of such claim occurrence or direct financial loss and within the insurance period or discovery period (if a discovery period is operable).

Such written notice shall satisfy all terms of the policy and will include the following, so far as is reasonably practicable and so far as the relevant policyholder is aware:

(a) the identities of all parties involved, if known;

(b) an outline of the facts alleged;

(d) the policy number under which the notification is made.

2.2 Written Notice

Notice to us will be given in writing, and delivered to:

ProRisk General Terms & Conditions v04.22 5 of 14

The National Claims Manager
ProRisk

Level 2, 115 Bridge Road
Richmond, VIC, 3121

Email: newclaims@prorisk.com.au

Any written notice will be considered effective from the date such notice is first received by us.

SECTION 3: CONSENT AND LEGAL REPRESENTATION

3.1 Consent

The insured, insured person or any agent of the insured’s must not:

(a) incur any costs or expenses or make any payment that is or may be covered under this policy

without our prior written consent (unless expressly stated otherwise by an Extension of Cover), such
consent not to be unreasonably withheld. We accept no liability for any costs or expenses incurred
or payment made by an insured, insured person or any agent of the insured without our prior
consent;

(b) take any action which is prejudicial to our interests; or

any claim.

This term is subject to section 54 of the Insurance Contracts Act 1984 (Cth) which limits our right to refuse to pay a claim.

3.2 Legal Representation

We will be entitled at any time, but not obligated, to take over and conduct in the policyholder's name:

(a) the defence of any suit, legal proceeding or action the subject of a claim;

(b) the investigation of any claim; or

We may appoint legal representatives of our choice for these purposes.

We shall not agree to any settlement in connection with any claim unless we have reasonably engaged with you and considered your interest in relation to defending the claim.

3.3 We will advance costs as incurred prior to a final determination or adjudication or up until the time that a

claim is withdrawn. If such a claim is finally determined not covered or is excluded under this policy then all such costs already advanced must be repaid to us.

3.4 The insured will provide its reasonable co-operation and any information that we may reasonably require

to assist us in defending any claim against the insured.

3.5 Legal advisers retained by us to act on the insured’s behalf in relation to any claim or investigation are at

liberty to disclose to us any information they receive in that capacity, wherever they obtain it from, including from the insured. By claiming under this policy, the insured authorises such legal advisers to disclose this information to us and waives all claim to legal professional privilege which might otherwise prevent those legal advisers from disclosing this information to us.

3.6 The legal advisers retained by us to conduct the investigation, defence or settlement of any claim or

investigation, may provide advice to us on any issue regarding our liability to indemnify the insured and, whilst doing so, may continue to act in the investigation, defence or settlement of the claim or investigation on behalf of both us and the insured.

3.7 The insured agrees that all communications between us and the legal advisers retained by us to act in the

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conduct of the investigation, defence or settlement of any claim or investigation in relation to the insured’s entitlement to indemnity from us are privileged between us and the legal advisers and the insured agrees that it is not entitled, under any circumstances, to access or obtain any such communications.

3.8 If any actual or apparent conflict arises between the interests of the insured and us, the legal advisers

retained by us to conduct the investigation, defence or settlement of any claim or investigation may cease acting on the insured’s behalf and may continue to act on our behalf in relation to any dispute between us and the insured with respect to the insured’s entitlement to indemnity from us.

3.9 We will not agree to any settlement of any claim without consultation with you. If we recommend the

settlement of a claim for a certain amount, and the claim can be settled for that amount but you refuse to agree to the settlement and decide to contest the claim, then we are only liable under this policy for no more than:

(a) the recommended settlement amount; and

(b) costs up to the date of the insured’s refusal to settle.

3.10 You may conduct the defence of any suit, legal proceedings or action the subject of a claim or

investigation without our written consent, if the settlement amount and any costs for such claim does
not exceed the excess. You are required to provide us with reasonable progress reports and we reserve
the right to take over the conduct of the defence of the claim or investigation should we consider it be
reasonable to do so.

SECTION 4: GENERAL CONDITIONS

4.1 Allocation

Our liability under this policy is limited to the proportion of loss, direct financial loss, or any other form of

covered loss or loss that could be covered under the policy which is a fair and equitable allocation as

between:

(a) covered and uncovered parties; and/or

(b) covered and uncovered matters; having regard to the relative legal and financial exposures attributed

to the covered and uncovered matters and/or parties.

Only loss incurred by covered parties in relation to covered matters will be covered by this policy and is
subject always to the terms and conditions of this policy. We will use our best endeavours to agree with the
insured upon a fair and equitable allocation of the proportion covered under the policy, having regard to
the relative legal and financial exposures attributable to covered and uncovered matters and/or parties. If an
allocation cannot be agreed then it will be determined by a suitably qualified Senior Counsel to be mutually
agreed upon or, in default of agreement, to be nominated by the then President of the Bar Association of
New South Wales.

The Senior Counsel will make a determination as an expert based on the relative legal and financial exposures attributable to covered and uncovered matters and/or parties. Submissions made to the Senior Counsel will be in writing. Pending Senior Counsel’s determination, we will agree to pay loss on an interim basis at the percentage, which we contend should be fairly and equitably allocated. After the allocation has been determined or agreed, such allocation will be applied retrospectively. The parties agree to be bound by the Senior Counsel’s determination.

4.2 Alteration or Assignment of Interest

No change in, modification of, or assignment of interest under this policy will be effective except when made

by a written endorsement to this policy issued bv us.

4.3 Alteration to Risk and Change in Exposure

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The policy requires you to notify us within thirty (30) days of any material change in the nature of the
insured's business, or any act of insolvency or bankruptcy of the policyholder, or the appointment of an
administrator, liquidator, receiver or manager or any other change in exposure. The policy requires you
to give immediate notice of the cancellation, suspension, termination or imposition of conditions in respect
of the insured’s statutory registration. Loss arising from conduct which occurs subsequent to the
cancellation, suspension or termination of an insured’s statutory registration, licence, certification or
authorisation under any relevant legislation or industry code of practice governing your profession are
excluded from indemnity under the Policy.

4.4 Complaints Handling & Dispute Resolution

Any inquiry or complaint relating to this policy should be referred to ProRisk in the first instance. We have
a complaints handling and internal dispute resolution process to assist you, and information about our
complaints handling procedures is available upon request. 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 the Complaints Department of
the Underwriters:

The Complaints Manager

Swiss Re International SE, Australia Branch

Level 36, Tower Two, International Towers Sydney 200 Barangaroo Avenue, Sydney NSW 2000
Telephone: (02) 8295 9500

Email: complaints_anz@swissre.com

Complaints that cannot be resolved by the Complaints Department of the Underwriters may be referred to
the:

Australian Financial Complaints Authority
GPO Box 3

Melbourne VIC 3001

Email: info@afca.org.au
Telephone: 1800 931 678

Further details will be provided at the appropriate stage of the complaints process.

4.5 Goods & Services Tax

If you are entitled to an input tax credit for the premium paid for this policy, then you should advise us of
the extent of that entitlement at or before making a claim under the policy. The deductible paid by you will
be net of any input tax credit that is or may be available in connection with your payment of loss within the
excess.

4.6 Interpretation, Governing Law and Jurisdiction, and Assumptions

The construction of the terms and conditions of this policy, and interpretation of any issue relating to its construction will be determined by the laws of New South Wales and it is agreed that the courts of Australia will have exclusive jurisdiction to determine any disputes which arise in relation to this policy.

4.7 Non-Avoidance

We will not avoid this policy in the event of non-disclosure or misrepresentation of information to us if you be able to establish, to the reasonable satisfaction of us that such non-disclosure or misrepresentation was innocent and free from any fraudulent conduct or intent to deceive.

We may avoid this policy if the non-disclosure or misrepresentation of information to us was made
fraudulently.

ProRisk General Terms & Conditions v04.22 8 of 14

In either case, to the extent that the non-disclosure or misrepresentation has prejudiced our right to
effectively associate with you in the defence and settlement of any claim, then we reserve the right to deduct
from any loss an amount that we believe would have been payable had such prejudice not occurred.

4.8 Non-Imputation

The proposal for this insurance will be construed as a separate proposal by each insured under this
policy. With respect to the declarations and statements contained in the proposal, no statement in the
proposal or knowledge possessed by any insured will be imputed to any other insured under this policy.

Only knowledge possessed by and facts known to any past, present or future chairman, director, chief executive officer, chief financial officer partner, proprietor, or person occupying an equivalent position of the policyholder will be imputed to the policyholder.

For the purposes of determining whether an exclusion applies, no fact pertaining to or knowledge possessed by any insured will be imputed to any other insured under this policy.

4.9 Order of Payment

If the payment of loss in respect of a claim or direct financial loss is due under this policy but the amount

of such loss or direct financial loss in the aggregate exceeds the remaining available limit of liability, we

will:

(a) first pay such loss or direct financial loss for which coverage is provided to insured persons; then

(b) to the extent of any remaining amount of the limit of liability available after payment under sub-

paragraph (a) above, pay such loss or direct financial loss for which coverage is provided under any other provision of this policy.

4.10 Other Insurance

As permitted by the Insurance Contracts Act 1984 (Cth), the policy will only cover loss or direct financial loss to the extent that the amount of such loss or direct financial loss is in excess of any indemnity or cover available to the insured in respect of that loss or direct financial loss under the other insurance policy or policies listed in the schedule.

4.11 Policy Cancellation

The policyholder may cancel this policy at any time during the insurance period by giving us written
notice. If the policyholder cancels this policy, we will retain the earned proportion of the premium
calculated pro rata as at the date of cancellation, provided we will always retain a minimum of 25% of the
premium.

We will only cancel this policy as permitted by law and will be entitled to retain the pro rata proportion of the
premium.

This policy may otherwise be cancelled in writing following mutual agreement between the policyholder and us. A subsidiary cannot cancel the policy.

This policy will automatically terminate in the event that a discovery period has been purchased. In this case, we will return the unearned portion of the premium for this policy calculated pro rata as at the date of cancellation or offset it against any premium payable for the discovery period.

4.12 Retroactive Liability

If specified in the schedule, the policy is limited by a retroactive date. The policy does not cover any loss

arising from your conduct, or any acts, errors or failure to act, event or direct financial loss that occurs

prior to the retroactive date.

4.13 Representations

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It is understood and agreed that all statements and declarations made to us have been relied upon by us, but only to the extent that those statements and declarations are material.

4.14 Subrogation

Should any payment be made under this policy, we will retain the right to be subrogated to all rights of recovery in respect of such payments. In addition, all reasonable assistance, including the provision of documentation, will be rendered to us in the prosecution of such rights by you. Any recovery received will be applied first against any loss insofar as it exceeds the limit of liability, then against any payment made by us, and finally against the excess.

SECTION 5: GENERAL EXCLUSIONS

The following exclusions will apply to each policy purchased by the policyholder.

5.1 Asbestos & Toxic Dust

We will not be liable under this policy to make any payment for loss or direct financial loss based upon,
arising from or attributable to any actual or alleged liability for property damage, personal injury, sickness,
disease, occupational disease, disability, shock, death, mental anguish or mental injury at any time arising
out of the manufacture of, mining of, use of, sale of, installation of, removal of, distribution of, or exposure to

(a) asbestos, asbestos dusts, asbestos products, asbestos fibres; or

(b) silica, silica dust, silica products or silica fibres.

5.2 Nuclear

We will not be liable under this policy to make any payment for loss or direct financial loss based upon, arising from, or attributable to:

(a) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste

from the combustion of nuclear fuel;

(b) the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or

nuclear component; or

nuclear compound thereof.

5.3 Pollution

We will not be liable under this policy to make any payment for loss or direct financial loss based upon,
arising from, or attributable to the actual, alleged or threatened discharge, dispersal, release or escape of
pollutants whether such discharge, dispersal, release or escape is intentional or accidental; or any direction
or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralise pollutants.

5.4 Sanctions Limitation

We will not be liable under this policy to make any payment for loss or direct financial loss or to provide

any other benefit to the extent that trade or economic sanctions or other laws or regulations prohibit us from

providing insurance.

5.5 War, Terrorism and Unlawful Acts

We will not be liable under this policy to make any payment for loss or direct financial loss based upon,

arising from, or attributable to:

(a) war;

(b) terrorism; or

ProRisk General Terms & Conditions v04.22 10 of 14

connection with any unlawful association;

regardless of any other cause or event contributing concurrently or in any other sequence to the claim, loss or direct financial loss.

SECTION 6: GENERAL DEFINITIONS

6.1 Change in exposure means any of the following events:

(a) the policyholder is acquired by another person or entity;

(b) the policyholder merges or consolidates with another entity;

or designate at least 50% of the directors of the policyholder;

(d) any person, entity or affiliated group of persons or entities acquires 50% or more of the issued capital

or equity of the policyholder specified in the schedule.

6.2 Continuous cover date means the continuous cover date stated and specified in the schedule.

6.3 Discovered or discovery means when any director or officer, partner or proprietor (who is not in

collusion with an employee or third party who has committed or is attempting to commit a dishonest act) becomes aware of;

(a) any facts which would cause a reasonable person to believe that a direct financial loss which may

be covered by this policy has been or may be incurred, even though the exact amount or details of the direct financial loss are not known at that time; or

(b) a cyber incident or cyber crime, which may be covered by this policy, even though the exact amount

or details are not known at that time.

Such awareness constitutes discovery by the policyholder.

6.4 Excess means the amounts stated and specified as the excess or excesses in the schedule. In the event

that any claim falls under more than one insuring clause, extension or endorsement, then the applicable
excess will be applied to each insuring clause, extension or endorsement. However, the total amount
payable by the insured in respect of each claim covered by this policy will not exceed the highest applicable
excess.

6.5 Greenhouse gases means those gases defined by applicable law as a greenhouse gas including but not

limited to carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), fluorinated gases and high global warming potential gases.

6.6 Industrial Instrument means any award, agreement, arrangement or other instrument which is certified or

registered by an industrial tribunal in Australia including the Australian Industrial Relations Commission, Fair Work Australia and the Industrial Relations Commissions of the States or Territories of Australia, or similar provisions of any body anywhere in the world.

6.7 Insurance period means the period of time stated and specified as the insurance period of the schedule.

6.8 Investigator means any independent investigator, accountant or other consultant, who does not have a

conflict of interest, selected by the insured with our prior written consent (which will not to be unreasonably delayed or withheld), to establish the nature and extent of any direct financial loss.

6.9 Limit of liability means the amounts stated as the limit of liability in the schedule. For the avoidance of

doubt, the limit of liability includes any sub-limits. Sub-limits of liability are part of and not in addition to the limit of liability.

6.10 Other insurance means the other insurance policy or policies stated and specified as other insurance in the

schedule or any other insurance policy that provides coverage in whole or in part, for the same claim.

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6.11 Policy means this policy wording, any endorsements to it, the schedule, the General Terms & Conditions,

the proposal and any other documents that we advise form part of the policy. Where the General Terms & Conditions refer to ProRisk policies or ProRisk policy, this means the policy and any other policy issued to you by ProRisk.

6.12 Policyholder means the organisation, individuals or entities specified and stated as the policyholder in the

schedule.

6.13 Pollutants means any solid, liquid, gaseous, biological, radiological or thermal irritant, infectious or medical

waste, toxic or hazardous substance, or contaminant, including but not limited to lead, smoke, vapour, dust, fibres, mould, spores, fungi, germs, soot, fumes, acids, alkalis, chemicals, nuclear waste, oil or oil products, greenhouse gases and/or any noise.

6.14 Premium means the amount of money paid for the policy as stated in the invoice.

6.15 Proposal means the application form, together with any supplementary material completed by you or on

your behalf, that was given to us, and relied on by us to underwrite and effect this policy. For the avoidance
of doubt, the application form will include any online questions submitted to us through an internet portal.

6.16 ProRisk means Professional Risk Underwriting Pty Ltd ABN 80 103 953 073 AFSL 308076.

6.17 Retroactive date means the retroactive date stated and specified in the schedule.

6.18 Schedule means the schedule and any Endorsements attached to this policy.

6.19 Subsidiary means any organisation of which the policyholder controls or has controlled:

a) any legal entity in which the policyholder owns or controls, directly or indirectly, more than 50% of

the outstanding securities or voting rights representing the present right to vote for election of
directors;

b) any legal entity that ceases to be a subsidiary of the policyholder during the insurance period or

prior to commencement of the insurance period, provided that the cover provided will only apply in
respect of a acts, errors or failure to act that occurred whilst the entity was a subsidiary of the
policyholder;

c) any legal entity which is created or acquired by the policyholder during the insurance period,

provided that the legal entity:

(i) has total gross assets which are less than 25% of the total gross assets of the policyholder;

(ii) has gross annual turnover of less than 25% of the total gross annual turnover of the

policyholder; or

(iii) has total gross assets which are less than 25% of the total gross assets of the policyholder

in the USA or Canada.

The cover provided in this policy will only apply in respect of acts, errors, failures to act or conduct occurring after the date of creation or acquisition.

6.20 Territorial limits means the territorial limits and areas of sovereign control of the sovereign nations, states

or areas, stated and specified in the schedule.

6.21 Terrorism means the use of force or violence and/or the threat of force or violence, by any person or

group(s) or persons, whether acting alone or on behalf of or in connection with any organisations(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.

6.22 Underwriters means Swiss Re International SE Australia Branch (ABN 38 138 873 211).

6.23 Unlawful association means any organisation which is engaged in terrorism.

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6.24 Us, our and we means ProRisk on behalf of underwriters.

6.25 USA means the United States of America, its territories, possessions and includes its states or political sub-
divisions.

6.26 War means war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared
or not), civil war, mutiny, civil commotion assuming the proportions of or amounting to popular rising, military

rising, insurrection, rebellion, revolution, military or usurped power.

sudarno hardjo 03:36 Komentar