> _Markdown transcription of Delta Insurance Delta Associations Liability policy wording, effective 2023-08-01. Source: https://deltainsurance.co.nz/hubfs/Documents%20-%20policy%20wordings/DELTA%20NZ_Associations%20Liability%20Insurance_Policy%20Wording_August%202023.pdf_ --- # Associations Liability Insurance ## Policy Wording **Delta Assoc 0823** © Delta Insurance New Zealand Ltd. All rights reserved. --- In consideration of the premium charged, the Underwriters and the Named Insured, on behalf of all Insureds, agree as follows: --- # Section 1: Insuring Agreement **1.1** The Underwriters will pay on behalf of any **Insured Person** the **Loss** arising from a **Claim** first made during the **Policy Period** (or **Extended Reporting Period** – if applicable) against such **Insured Person** for any **Wrongful Act** unless the **Named Insured** has indemnified the **Insured Person** for such **Loss**. > No Excess applies to Insuring Agreement 1.1 **1.2** The Underwriters will pay on behalf of any **Named Insured** the **Loss** arising from a **Claim** first made during the **Policy Period** (or **Extended Reporting Period** – if applicable) against any **Insured Person** for any **Wrongful Act** if the **Named Insured** has paid such **Loss** to or on behalf of the **Insured Person**. **1.3** The Underwriters will pay on behalf of any **Named Insured** the **Loss** arising from a **Claim** first made during the **Policy Period** (or **Extended Reporting Period** – if applicable) against the **Named Insured** for a **Breach of Professional Duty** – provided this Insuring Agreement is shown in the Schedule as "Included". --- # Section 2: Automatic Extensions ## 1. Continuous Cover This Extension affords cover for any **Claim** arising out of, based upon or attributable to a **Circumstance** which could have been, but was not, notified by the **Insured** under any prior policy provided by the Underwriters and which is first notified to the Underwriters during the **Policy Period**, provided that: a. the failure by the **Insured** to notify such **Circumstance** under any such prior policy was not fraudulent; and b. the Underwriters have the discretion to apply either the terms and conditions of this Policy or the terms and conditions of the prior policy in effect when the **Circumstance** first arose; and c. the **Insured**'s entitlement to indemnity will be reduced by the extent of any prejudice to the Underwriters as a result of the **Insured**'s failure to notify such **Circumstance** under any such prior policy. ## 2. Estate Extension This Extension affords cover for any **Claim** for a **Wrongful Act** if such claims are made against the estates, heirs, legal representatives or assigns of a deceased **Insured Person** or the legal representatives or assigns of an **Insured Person**. ## 3. Loss Mitigation If the **Named Insured** reasonably determines during the **Policy Period** that urgent action is needed in order to avoid or minimise the risk of a claim for which coverage under this Policy would apply, the **Insured** shall be entitled to retain a loss mitigation advisor to provide services in connection with avoiding or minimising such risk. The Underwriters shall pay the **Insured** for the reasonable fees, costs and expenses incurred by or on behalf of the **Insured**, with the Underwriters' prior written consent (such consent not to be unreasonably withheld or delayed), for such loss mitigation services. This Automatic Extension does not extend to cover the **Insured**'s own time spent in mitigating any such risk. This coverage is subject to a **Sublimit of Liability** as specified in Item 5 of the Schedule. ## 4. Defamation – Insuring Agreement 1.3 only The Underwriters will indemnify the **Insured** for any **Claim** for defamation by the **Insured** which arises out of a **Breach of Professional Duty**. ## 5. Fair Trading Act 1986 – Insuring Agreement 1.3 only The Underwriters will indemnify the **Insured** for any **Claim** made under sections 9 to 14 of the Fair Trading Act 1986 which arises out of a **Breach of Professional Duty**. ## 6. Dishonesty and Fraud – Insuring Agreement 1.3 only Notwithstanding exclusion 3, the Underwriters will indemnify the **Named Insured** for any **Claim** made against the **Named Insured** arising from any dishonest or fraudulent act or omission committed by any **Employee**, provided that: a. such conduct has not been knowingly permitted or condoned by any other **Insured** who is un-connected with such **Claim**; and b. there is no indemnity for the person(s) who carried out, or was alleged to have carried out, the conduct or condoned the conduct; and c. this arises from a **Breach of a Professional Duty**. ## 7. Loss of Documents – Insuring Agreement 1.3 only The Underwriters will indemnify the **Insured** for the reasonable and necessary costs and expenses incurred in replacing and restoring **Documents** that after a diligent search cannot be located or that have been destroyed, damaged or distorted beyond reasonable use, provided that such documents were: a. in the physical custody or control of the **Insured**; and b. this arises from a **Breach of a Professional Duty**. ## 8. Quasi Judicial – Insuring Agreement 1.3 only The Underwriters will indemnify the **Insured** in relation to any complaint or investigation against the **Insured** by a professional or statutory body which has jurisdiction to investigate and adjudicate in such a situation, provided that any such investigation or complaint has been notified to the Underwriters during the **Policy Period**, for: a. all orders or determination of compensation against the **Insured**; and b. any **Defence Costs**. which arise by way of a **Breach of Professional Duty**. This extension is subject to a **Sublimit of Liability** as shown in Item 5 of the Schedule, inclusive of **Defence Costs**. --- # Section 3: Optional Extensions ## 1. Extended Reporting Period If this Extension is shown as Included in Item 5 of the Schedule and the Policy is not renewed by the Underwriters, the **Insured** shall have the right to purchase an **Extended Reporting Period**. The additional premium for an **Extended Reporting Period** shall be determined by the Underwriters on application of the right to purchase by the **Insured** which must be made prior to the expiry of the Policy. The **Insured** shall not have any right to an **Extended Reporting Period** in the event of any management and or organisational change or in the event of cancellation or non-renewal for non payment of premium. Any **Extended Reporting Period** provided by this Policy shall not increase or reinstate any **Limit of Liability** or **Sublimit of Liability** of this Policy and is non-cancellable. ## 2. Outside Positions If this Extension is shown as Included in Item 5 of the Schedule, the Underwriters agree to indemnify the **Insured** for any **Claims** for **Wrongful Act**, brought against an **Insured Person** who at the specific request or direction of a **Named Insured**, acts as an **Executive** or equivalent thereof of an **Outside Entity** but only whilst that person is acting in their capacity as such. Any such person shall be referred to herein as an **Outside Position Insured Person**. The extent of indemnity afforded by Underwriters shall be in excess of any indemnification from an **Outside Entity** and any other insurance coverage provided to an **Outside Entity** or its executives, directors, officers, trustees, or equivalent. --- # Section 4: Exclusions The Underwriters will not pay anything under this Policy in respect of any claim: ## 1. Asbestos arising directly or indirectly out of, based upon or attributable to: a. The actual, alleged or threatened presence, discharge, dispersal, release, migration or escape of asbestos; or b. Any direction, request or effort to: i. Test for, monitor, clean up, remove, contain, treat, detoxify or neutralize asbestos; or ii. Respond to or assess the effects of asbestos. ## 2. Bodily Injury/Property Damage arising out of or based upon bodily injury (other than emotional distress or mental anguish), sickness, disease, or death of any person, or damage to or destruction of any tangible property, including the loss of use thereof. ## 3. Dishonesty and Fraud arising directly or indirectly out of, based upon or attributable to any dishonest, criminal or fraudulent act by any **Insured**. ## 4. Excluded Losses For any: i. fines or penalties imposed by statute, except for orders or determinations of compensation under Extension 8 Quasi Judicial Costs; ii. taxes, except as provided by GST Condition; iii. the multiple portion of any multiplied damage award; and iv. amounts for which the Underwriters are prohibited from indemnifying the **Insured** under any law or statute. ## 5. Pre Retroactive Date arising from any **Wrongful Act** and or **Breach of Professional Duty** committed or allegedly committed prior to the **Retroactive Date** shown in the Schedule. ## 6. Insured vs Insured brought by or on behalf of any **Insured** against any other **Insured**; provided, however, that this Exclusion shall not apply to any **Claim** made under this Policy brought by an **Insured** that is in the form of a cross-claim or third party claim for contribution or indemnity which is part of, and results directly from, a **Claim** which is not otherwise excluded. ## 7. Pollution arising directly or indirectly out of, based upon or attributable to: a. The actual, alleged or threatened presence, discharge, dispersal, release or escape of **Pollutants**; or b. The testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralising **Pollutants**, whether or not any of the foregoing are or should be performed by the **Insured** or by others. ## 8. Territorial Limits a. arising out of, based upon or attributable to any legal proceeding brought outside of the **Territorial Limits**; or any legal proceeding brought to enforce a judgement obtained in any country or territory outside the **Territorial Limits** or any legal proceeding to which the proper law to be applied is that of a country outside of the **Territorial Limits**; b. arising out of a **Claim** brought against the **Insured** outside the **Territorial Limits**. ## 9. Fee Refund for a refund of professional and/or membership fee/s, by way of damages or otherwise. ## 10. Sale and or Supply of Goods for any loss alleging or arising from the sale, supply, installation, efficacy or manufacture of goods by or on behalf of the **Insured**. ## 11. Prior Knowledge a. that was first threatened, made against, or intimated to, the **Insured** prior to the commencement of the Policy period; or b. that was notified under any previous policy of insurance; or c. arising out of or connected with any facts, **Circumstance** or circumstances that the **Insured** knew or ought reasonably to have known prior to commencement of the **Policy Period** might or could give rise to a claim under this Policy; or d. arising out of, based upon or attributable to, as of the Continuity Date in Item 8 of the Schedule, any pending or prior: (a) litigation; or (b) civil, criminal, administrative or regulatory proceeding or investigation, of which any **Insured** had notice; or any **Claim** alleging or derived from the same or essentially the same facts the same or related **Wrongful Act**(s) and or **Breach of Professional Duty**, as alleged in such pending or prior litigation or civil, criminal, administrative or regulatory proceeding or investigation; or e. arising out of, based upon or attributable to the same or essentially the same facts alleged, or to the same or related **Wrongful Acts**(s) and or **Breach of Professional Duty**, alleged or contained, in any **Claim** which has been reported, or in any **Circumstances** of which notice has been given prior to the Inception Date in item 2A of the Schedule, under any policy, whether excess or underlying, of which this Policy is a direct renewal or replacement. ## 12. Terrorism of whatsoever nature directly or indirectly caused by, resulting from or in connection with any act of terrorism regardless of any other cause or event contributing concurrently or in any other sequence to the loss. This exclusion applies notwithstanding any provision to the contrary within this Policy or any endorsement thereto. For the purpose of this Exclusion, an act of terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear. This Exclusion also excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing, or in any way relating to any act of terrorism. If the Underwriters allege that by reason of this Exclusion, any loss, damage, cost or expense is not covered by this Policy, the burden of proving the contrary shall be upon the **Insured**. In the event any portion of this Exclusion is found to be invalid or unenforceable, the remainder shall remain in full force and effect. ## 13. War and Civil War of whatsoever nature directly or indirectly caused by, resulting from or in connection with war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation of nationalisation or requisition or destruction of, or damage to, property by or under the order of any government or public or local authority. ## 14. Radioactive Contamination and Explosive Nuclear Assemblies a. for loss or destruction of or damage to any property whatsoever or any loss or expense whatsoever resulting or arising therefrom or any consequential loss; or b. for any legal liability of whatsoever nature, directly or indirectly caused by or contributed to by or arising from: i. ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; or ii. the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. ## 15. Sanctions and shall not: - be required to provide any cover; or - be liable to pay any claim or provide any benefit, under this Policy to the extent that doing so would expose the Underwriter to, or render it liable under, any Sanction under the laws or regulations of New Zealand, Australia, the United Kingdom, the European Union, the United States of America and/or the United Nations. --- # Section 5: Conditions ## Address for Service Delta Insurance New Zealand Limited, as agent for and on behalf of certain Underwriters at Lloyd's, will accept notification of any **Claims** or **Circumstances** or other claims under this Policy upon presentation to the address shown in the Schedule. ## Assignment This Policy and any and all rights hereunder are not assignable without the prior written consent of the Underwriters. ## Authorisation Except as otherwise specifically provided under any other provision of this Policy, the first entity named in Item 1A of the Schedule shall act on behalf of all **Insureds** with respect to all matters under this Policy including: a. giving of notice of a **Claim** or **Circumstance** covered under this Policy; b. defending or settling any **Claim** covered under this Policy; c. giving and receiving all correspondence and information; d. giving and receiving notice of cancellation; e. paying any premium; f. receiving any return premium; g. receiving and accepting any endorsements issued to form a part of this Policy; and h. exercising any right to an **Extended Reporting Period**. ## Cancellation The **Insured** may cancel this Policy at any time by giving the Underwriters written notice stating when, not less than thirty (30) days thereafter, such cancellation shall be effective. In such event, the Underwriters shall retain the short rate portion of the premium. The Underwriters will release any such premium following the receipt of a No Claims Declaration from the **Insured**. The Underwriters may cancel this Policy at any time (including upon the insolvency, liquidation or administration of the **Named Insured**) by giving the **Named Insured** written notice stating when, not less than thirty (30) days thereafter, such cancellation shall be effective. In the event that prior to the effective date of such cancellation the **Insured** has not provided notice to the Underwriters of any **Claim** or **Circumstance**, or other claim/s the Underwriters shall return a pro rata portion of the premium to the **Insured**. However, if such notice has been provided, the premium shall be deemed fully earned as of the Inception Date specified in Item 2A of the Schedule. The Underwriters shall have the right to cancel this Policy if the premium has not been paid by the **Insured** within sixty (60) days after the Inception Date specified in Item 2A of the Schedule. In the event of such non-payment, the Underwriters may cancel this Policy as if it had never been in existence and shall provide the **Named Insured** with not less than ten (10) days prior written notice of such cancellation. In the event of such cancellation, the Policy will be deemed terminated as of the date indicated in the Underwriters' written notice of cancellation to the **Named Insured**. Any notice provided to the **Named Insured** under this Condition shall be delivered or posted to the **Named Insured** at the address specified in Item 1B of the Schedule. The posting of such notice as aforesaid shall be sufficient proof of notice. ## Complaints and Disputes If you have any concerns or wish to make a complaint in relation to this policy, our services or your insurance claim, please let us know and we will attempt to resolve your concerns in accordance with our Internal Dispute Resolution procedure. Please contact Delta Insurance New Zealand Limited in the first instance: > Complaints officer > Delta Insurance New Zealand Limited > complaints@deltainsurance.co.nz > > Auckland +64 9 300 3079 > Level 22 > 48 Shortland Street > Auckland Central > Auckland 1010 > PO Box 106 276 > Auckland 1143 We will acknowledge receipt of your complaint within 5 business days and do our utmost to resolve the complaint to your satisfaction within 10 business days, unless we require further information in which case, we will agree an alternate time frame with you. If we cannot resolve your complaint to your satisfaction, you can escalate the matter to Lloyd's General Representative in New Zealand: > Lloyd's General Representative in New Zealand > Email: IDRNewZealand@lloyds.com > Telephone: +64 4 472 7582 > Post: PO Box 5639 > Wellington > New Zealand Following receipt of your complaint, you will be advised whether your dispute will be handled by the Complaints team at Lloyd's Australia or the Lloyd's Complaints team in the UK, or what other avenues are available to you. A final decision will be provided to you within two months of the date on which you first made the complaint unless certain exceptions apply. If your complaint is not resolved in a manner satisfactory to you or we do not resolve your complaint within two months of originally receiving it, you may refer the matter to the Insurance and Financial Services Ombudsman (IFSO Scheme). IFSO Scheme can be contacted as follows: > Telephone: 0800 888 202 or +64 4 499 7612 > Email: info@ifso.nz or via their website www.ifso.nz > Post: PO Box 10-845 Wellington New Zealand Your complaint must be referred to IFSO Scheme within 3 months of the final decision, unless IFSO Scheme considers special circumstances apply. If your complaint is not eligible for consideration by IFSO Scheme, you may be referred to the Financial Ombudsman Service (UK) or you can seek independent legal advice. You can also access any other external dispute resolution or other options that may be available to you. ## Confidentiality The **Insured** shall not disclose to any third party the terms, conditions, exclusions, or **Limits of Liability** of this Policy or the amount of the premium paid, except to the extent that they are required by law to do so or receive written consent from the Underwriters to make such disclosure. ## Cooperation As a condition precedent to the right to be indemnified under this Policy, the **Insured** must provide to the Underwriters (or their appointed agent) within fourteen (14) days of any request made by the Underwriters (or their appointed agent), full details of any **Claim**, claims under this Policy or **Circumstance** and any other information requested by the Underwriter regarding any claims for which the **Insured** has requested to be indemnified. The **Insured** must also provide such cooperation and assistance as the Underwriters (or their legal advisers or appointed agents) may require, including but not limited to providing: a. all relevant documentation; b. detailed comments on any claim document; c. detailed signed statements of fact; d. access to any and all information; e. information, assistance and signed statements of fact in respect of any subrogation proceeding commenced by the Underwriters; and f. all other information and assistance. All **Insureds** and all persons, firms and companies acting for or on the **Insured**'s behalf shall ensure that all documents that may be relevant to any **Claim**, **Circumstance** or other claim covered under this Policy shall not be intentionally destroyed or otherwise intentionally disposed of. ## Defence, Settlement and Advancement of Costs The Underwriters do not assume any duty to defend any **Claim** covered under this Policy. However, the Underwriters shall have the right, but not the duty, to fully and effectively take conduct and control of the investigation, defence and settlement of any **Claim**, **Circumstance** or other claim that may give rise to a **Claim** covered under this Policy, including but not limited to the right to appoint legal defence counsel on behalf of the **Insured**, investigate, conduct settlement negotiations, and enter into the settlement of any **Claim** covered under this Policy that the Underwriters deem appropriate. In the event of a **Claim** covered under this Policy which involves covered and non-covered matters or covered and non-covered parties, the **Insured** and the Underwriters agree to use their best efforts to determine a proper allocation of any amount payable under this Policy. In the event that a determination as to the amount of **Defence Costs** to be advanced cannot be agreed to, then the Underwriters shall advance **Defence Costs**, in excess of any applicable **Excess**, which the Underwriters consider to be proper until a different amount shall be agreed upon or determined pursuant to the provisions of this Policy and applicable law. The **Insured** shall not, without the prior written consent of the Underwriters (such consent not to be unreasonably withheld or delayed): a. admit or assume any liability; b. incur any **Defence Costs**; c. make any settlement offers, enter into any settlement agreement or stipulate to any judgments; However, the Underwriters' consent is not required for the **Insured** to settle a **Claim** covered under this Policy if the total settlement amount (including **Defence Costs**) is within the applicable **Excess**, provided that such settlement fully resolves the claim with respect to any **Insured** and the Underwriters. ## Excess Where the Policy requires payment of an **Excess**: a. The Underwriters shall only pay the amounts covered which exceed the applicable **Excess**. The **Excess** is to be borne by the **Insured** and remain uninsured; b. The Underwriters shall only be liable for the amount covered by the Policy arising from a **Claim**, **Circumstance** or other claim, which exceeds the applicable **Excess**. Where a Coverage Section provides for related **Claims**, a single **Excess** shall apply to all amounts covered by the Policy that arise from all related **Claims**. The application of the **Excess** to any amounts covered under one Insuring Agreement shall not reduce the **Excess** that applies to any amounts covered under any other Insuring Agreement. If different **Excess** amounts apply to different parts of a **Claim** covered under this Policy, the applicable **Excess** amount shall be applied separately to each part of the **Claim** covered under this Policy, and the sum of such **Excess** amounts shall not exceed the largest single **Excess** amount which applies to such **Claim** covered under this Policy. If the **Named Insured** is legally required or permitted to indemnify an insured natural person for any amounts covered by this Policy, and does not do so for any reason, the Underwriters shall not require payment of the applicable **Excess** by an insured natural person. However, the **Named Insured** hereby agrees to reimburse the Underwriters for the full amount of such **Excess** immediately upon request, unless the **Named Insured** is unable to do so solely by reason of insolvency. ## Exclusions Nothing in any Exclusion in this Policy shall be construed to extend this Policy to any liability which would not have been covered in the absence of such Exclusion. ## Fraudulent Claims If the **Insured** gives notice, provides information, or makes any request in respect of any **Claim** or **Circumstance** or other claim covered under this Policy, knowing such notice, information or request to be false or fraudulent as regards amount or otherwise, this Policy shall become void and all entitlements to indemnity under this Policy shall be forfeited. ## Governing Law and Exclusive Jurisdiction This Policy shall be construed according to the laws of New Zealand. Any issue and all disputes relating to this Policy shall be determined by the laws of New Zealand, whose courts shall have exclusive jurisdiction to hear any dispute. ## GST Where the **Insured** is liable to pay tax under section 5 (13) of the Goods and Services Tax Act 1985 (or any statutory amendment or re-enactment of the section or Act) upon receiving any indemnity payment under this Policy, the Underwriters will indemnify the **Insured** for the costs of that tax. The indemnity under this Condition is payable by the Underwriters in addition to the **Limit of Liability** specified in Item 3A of the Schedule. Where the Policy refers to any **Excess** it shall be inclusive of GST. ## Headings The descriptions in the headings and any subheading of this Policy (including any titles given to any Extension and or any endorsement attached hereto) are inserted solely for convenience and do not constitute any part of this Policy's terms or conditions. ## Insured's Right to Contest a Claim If the **Insured** does not agree with a decision by the Underwriters to settle a **Claim** covered under this Policy, the **Insured** can elect to contest the **Claim** at its own expense, but the liability of the Underwriters will not exceed the amount for which the **Claim** covered under this Policy could have been settled in the opinion of a senior legal counsel (to be mutually agreed upon by the **Insured** and the Underwriters or in the absence of agreement by determination of the President of the New Zealand Law Society). The Underwriters shall pay all **Defence Costs** incurred up to the date the **Insured** notifies the Underwriters in writing of its election under this Condition and shall pay the **Insured** (subject to any **Excess**) the amount for which the **Claim** covered under this Policy could have been so settled. The **Insured** expressly agrees that the Underwriters' liability in respect of such **Claim** covered under this Policy, shall then be at an end. ## Interpretation Words and phrases appearing capitalised and in bold, where used in the Policy, except where they appear in headings, have the meaning defined for that word or phrase in the Definitions. To the extent that there are any inconsistencies between the Conditions or Exclusions and the individual Insuring Agreements, the terms and conditions of the individual Insuring Agreement will prevail. In the Policy: a. The singular includes the plural; b. Reference to one gender includes reference to all other genders; c. In the event that any portion of the Policy is found to be invalid or unenforceable, the remainder shall remain in full force and effect. ## Late Notice, Innocent Non-Disclosure and Material Non-Disclosure The Underwriters shall not exercise their right to avoid this Policy, nor will the Underwriters reject a request for indemnity, solely on the grounds of non-disclosure in the **Proposal** or a breach of the notice provisions in the Notice Condition provided that: a. the **Insured** shall establish to the Underwriters' reasonable satisfaction that such non-disclosure or breach was free of any fraudulent conduct or intent to deceive; b. if the **Insured** was aware, prior to the Inception Date in Item 2A of the Schedule, of any **Claim** or **Circumstance** or matter for which cover is provided under this Policy, then if the indemnity available under this Policy is greater or wider in scope than that which would have been available, if any, to the **Insured** prior to such Inception Date, the Underwriters shall only be liable to indemnify the **Insured** for such amount and on such terms as would have been available to the **Insured** prior to such Inception Date, except that nothing in this provision shall entitle the **Insured** to any indemnity wider or more extensive than is otherwise available under this Policy; c. if such non-disclosure or breach has resulted in prejudice to the Underwriters in the handling or settlement of any **Claim** or request for indemnity, the indemnity afforded by this Policy in respect of such **Claim** or request for indemnity shall be reduced by such sum as would have been payable, in the Underwriters' reasonable opinion, by the Underwriters in the absence of such prejudice; and d. no indemnity shall be available for any matter for which the **Insured** fails to provide notice of a **Claim**, **Circumstance** or claim covered under this Policy, within thirty (30) days after the Expiry Date of this Policy. In consideration of the Underwriters waiving their right to avoid this Policy and in the event of a material non-disclosure in the **Proposal**, the Underwriters shall be entitled in their sole discretion: i. to determine the amount of any additional premium to be paid by the **Insured**; and ii. to charge such additional premium to the **Insured**. ## Limits of Liability Unless otherwise specified in the Schedule: The **Limit of Liability** is the maximum liability of the Underwriters as in Item 3A of the Schedule. ## Notification The **Insured** shall, as a condition precedent to the obligations of the Underwriters under this Policy, and irrespective of the quantum, give the Underwriters notice as soon as practicable of: a. any **Claim** made against the **Insured**; b. any **Circumstance**; or c. or any other claim covered by this Policy Notice given by the **Insured** must: relate to a **Claim**, **Circumstance** or other claim covered under this Policy that occurred during the **Policy Period**; and In the event an **Insured** fails to provide notice as soon as practicable in accordance with this Condition, the Underwriters shall not be entitled to deny coverage for such **Claim**, and or **Circumstance** or other claim covered under this Policy based solely upon late notice, unless the Underwriters can establish that their interests were materially prejudiced by reason of such late notice. If during the **Policy Period** an **Insured** gives written notice to the Underwriters of a **Circumstance**, with full particulars as to allegations anticipated, dates, persons and entities involved, then any **Claim** covered under this Policy that is subsequently made against an **Insured** alleging, arising out of, based upon or attributable to such **Circumstance**, shall be considered made at the time written notice of such **Circumstance** was given to the Underwriters. The **Insured** shall give written notice to the Underwriters: i. via their insurance broker or; ii. to the Underwriter at the address shown in the Schedule ## Other Insurance The insurance provided by this Policy, shall apply only as excess over any other valid and collectible insurance, whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written specifically as excess insurance over the applicable **Limit of Liability** provided by this Policy. This Policy shall not be subject to the terms and conditions of any other insurance policy. Upon giving notice of any **Claim**, **Circumstance** or other claim covered under this Policy, the **Insured** agrees to provide to the Underwriters written details of any other insurance that may cover or partially cover such **Claim**, **Circumstance** or other claim covered under this Policy. ## Order of payments The Underwriters shall pay any amounts for a claim covered under this Policy in the order in which such amounts are presented to the Underwriters for payment. Should the Underwriters in their sole and absolute discretion, determine that the **Limit of Liability** in Item 3A of the Schedule will not be sufficient to cover the entire amount of the claim, the Underwriters shall pay the amounts claimed in accordance with the provisions of Section 9 of the Law Reform Act 1936. The Insolvency of any **Named Insured** shall not relieve the Underwriters of any of their obligations to prioritise payment of covered **Loss** under this Policy. ## Recovery In the event the Underwriters recover amounts they have paid under this Policy, the Underwriters will reinstate the **Limit of Liability** as in Item 3A of the Schedule to the extent of such recovery, less costs incurred by the Underwriters in administering and obtaining such recovery. The Underwriters, in their sole and absolute discretion, shall determine the amounts to be credited, if any, toward a reinstatement of such **Limit of Liability**. The Underwriters assume no duty to seek a recovery of any amounts they have paid under this Policy. ## Representations and Severability It is agreed between the **Insured** and the Underwriters that the **Proposal** shall be deemed to be incorporated into and form the basis of this Policy and the **Insured** warrants the truth of all statements made therein. All such statements and representations shall be deemed to be the basis of this Policy and are to be considered as incorporated into this Policy. No statements or representations made by, information or knowledge possessed by an insured natural person or any conduct of any insured natural person shall be imputed to any other insured natural person for the purpose of determining whether coverage is available under this Policy for any **Claim** made against such insured natural person. However: a. the knowledge possessed by any insured natural person who is a past or current chief executive officer, president or chief financial officer of the **Named Insured** shall be imputed to such **Named Insured** for the purpose of determining whether coverage is available under this Policy for any **Claim** made under this Policy made against the **Named Insured**; and b. where the **Named Insured** is a company with a sole director the knowledge of the sole director shall be imputed to the **Named Insured**. This Policy shall be construed as a separate Policy covering each **Insured Person** for his or her own individual interest. ## Several Liability The liability of an Underwriter under this Policy is several and not joint with other Underwriters party to this Policy. An Underwriter is liable only for the proportion of liability it has underwritten. An Underwriter is not jointly liable for the proportion of liability underwritten by any other Underwriter; nor is an Underwriter otherwise responsible for any liability of any other Underwriter that may underwrite this Policy. The proportion of liability under this Policy underwritten by an Underwriter (or, in the case of a Lloyd's syndicate, the total of the proportions underwritten by all the members of the syndicate taken together) is shown in this Policy. In the case of a Lloyd's syndicate, each member of the syndicate (rather than the syndicate itself) is an Underwriter. Each member has underwritten a proportion of the total shown for the syndicate (that total itself being the total of the proportions underwritten by all the members of the syndicate taken together). The liability of each member of the syndicate is several and not joint with other members. A member is liable only for that member's proportion. A member is not jointly liable for any other member's proportion; nor is any member otherwise responsible for any liability of any other Underwriter that may underwrite this Policy. The business address of each member is: > Lloyd's, > One Lime Street, > London EC3M 7HA. The identity of each member of a Lloyd's syndicate and their respective proportion may be obtained by writing to Market Services, Lloyd's, at the above address. ## Subrogation Upon payment by Underwriters of any amounts covered under this Policy, the Underwriters shall be subrogated to the extent of such payment to all of the **Insured**(s)' rights of recovery, including but not limited to any of the insured natural person's rights of recovery against a **Named Insured** for indemnification. The **Insured**(s) shall execute all papers required (including those documents necessary for the Underwriters to bring suit or other form of proceeding in their name) and do everything that may be necessary to pursue and secure such rights. All recoveries for payments made under this Policy whether made by the Underwriters or the **Insured**, shall be applied net of the expense of such recovery: a. first, to the **Insured** in satisfaction of the **Insured**'s covered loss in excess of the amount paid under the Policy; b. second, to the Underwriters in satisfaction of amounts paid in settlement of the **Insured**'s claim; c. third, to the **Insured** in satisfaction of any **Excess**; and d. fourth, to the **Insured** in satisfaction of any loss not covered by the Policy. Recoveries do not include any recovery for insurance, suretyship, reinsurance, security or indemnity taken for the Underwriters' benefit. The Underwriters shall not exercise their subrogation rights against an **Insured Person** unless and to the extent Exclusion 4.3 (Dishonesty and Fraud) applies to such **Insured Person**. ## Underwriters Rights In the event that the Underwriters are entitled to avoid or repudiate this Policy ab initio, the Underwriters may instead at their election give written notice to the **Insured** that they regard this Policy as of full force and effect, except that the Policy shall exclude coverage for any **Claim** covered under this Policy which has arisen or which may arise and which is related to the circumstances which entitle the Underwriters to avoid or repudiate this Policy. This Policy shall then continue in full force and effect and such applicable exclusion shall be added to this Policy by endorsement attached hereto. ## Valuation and Currency All amounts stated in this Policy are expressed in New Zealand dollars and all amounts payable under this Policy are payable in New Zealand dollars, unless as otherwise stated in the Schedule. If a judgement rendered or settlement entered into under this Policy is stated in a currency other than New Zealand dollars, then payment under this Policy shall be made in New Zealand dollars at the rate of exchange published by the Reserve Bank of New Zealand at 3pm on the date the final judgement is rendered or the settlement payment is established. ## Waiver of Privilege If the Underwriters instruct any lawyer to investigate or defend any claim against any **Insured** and or **Insured Person**, the **Insured** and or **Insured Person** authorises the lawyer to provide to the Underwriters any documents, information or advice in respect of the **Claim**, including in relation to indemnity, and the **Insured** and or **Insured Person** waives any privilege to the extent necessary to give full effect to the Underwriter's entitlement in this respect. --- # Section 6: Definitions **1. Breach of Professional Duty** in respect of Insuring Agreement 1.3 (if included) means, any act, error or omission by the **Named Insured** in the course of providing the professional services described in the Schedule. **2. Circumstance** means an incident, fact, matter, act, error or omission which in the opinion of a reasonable **Insured** is likely to give rise to: a. **Claim** against the **Insured**; or b. any other claim covered under this Policy **3. Claim** means any: a. written demand; b. judicial, administrative or regulatory proceeding, whether civil or criminal; c. arbitration or mediation proceeding commenced against an **Insured**; d. **Investigation**. **4. Defence Costs** means reasonable, legal costs, disbursements, witnesses' costs, assessors' or adjusters' costs or experts' costs that relate directly to the **Claim**, **Investigation**, or claim arising from a **Breach of Professional Duty** incurred by the Underwriters, or by the **Named Insured** with the Underwriters' prior written consent. **Defence Costs** does not include the **Named Insured**'s time assisting the Underwriters or appointed solicitors with the conduct of any **Claim**, **Investigation**, or a claim arising from a **Breach of Professional Duty**. **5. Documents** means deeds, wills, agreements, maps, plans, books, letters, policies, certificates, forms and documents of any nature, whether printed, written or reproduced by any method including computer records and electronically stored data. **6. Employee** means any natural person who was, now is or shall be a full-time, part-time, seasonal or temporary employee of the **Named Insured**. **Employee** shall not include any **Executive**, principal, partner or shareholder of the **Named Insured**. **7. Insured** means any **Named Insured** and any **Insured Person**. **8. Insured Person** means any: a. **Executive**; b. **Employee**, but only during such time as the **Claim** against such **Employee** is also made against an **Executive**; c. natural person serving as a representative or a director of a **Named Insured**; d. **Outside Positions Insured Person** in accordance with Optional Extension 2 Outside Positions. **9. Excess** means the amount shown in Item 4 of the Schedule. **10. Executive** means any past, present or future board or management member or any other person in a functionally equivalent or comparable position, but excluding externally appointed officers, manager and/or administrators. **11. Extended Reporting Period** means a period of 12 months, commencing on the Expiry Date as shown as item 2B of the Schedule, which provides for notification (in accordance with the Notification Condition) and indemnity for **Claims** arising from **Wrongful Act**/s and or Breach of Professional Services (if applicable), committed or alleged to have been committed, prior to the date the policy has not been renewed only. **12. Insured's Business** means the business and undertakings of the **Named Insured**. **13. Limit of Liability** means the **Limit of Liability** as shown in Item 3A of the Schedule. **14. Investigation** means any formal civil, criminal, administrative or regulatory investigation into the conduct of an **Insured Person** in their capacity as an **Insured Person** of the **Named Insured**, which is commenced by the filing or issuance of a notice of charges, subpoena or formal investigative order. **Investigation** does not include any such enquiry or proceeding undertaken by any professional or statutory body as referred to in Automatic extension 8 Quasi Judicial. **15. Loss** means any amount for which the **Insured** is legally liable for: a. compensatory damages; b. pre-judgment or post-judgment interest; c. costs or fees awarded against the **Insured**; d. **Defence Costs** that relate to a **Claim** or **Investigation**; and e. any amounts for which cover is provided pursuant to: - Section 2 Automatic Extensions; - Section 3 Optional Extensions (if included). **16. Named Insured** means the entity/entities named in Item 1A of the Schedule. **17. Outside Entity** means the entity the **Insured Person** who at the specific request or direction of **Named Insured**, acts as an **Executive** or equivalent thereof. **18. Outside Positions Insured Person** means the **Insured Person** acting as **Executive** or equivalent thereof of an **Outside Entity**. **19. Policy** means this policy wording, the Schedule, the **Proposal** and any endorsement/s attaching to and forming part of the Policy either at commencement or during the **Policy Period**. **20. Policy Period** means the period of time from the Inception Date as shown in Item 2A of the Schedule to the Expiration Date as shown in Item 2B of the Schedule or the effective date of cancellation of this Policy. **21. Pollutants** means any solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to smoke, vapour, soot, fibres, mould, spores, fungus, fumes, acids, alkalis, chemicals and waste. Waste includes, but is not limited to, materials to be recycled, reconditioned or reclaimed. **22. Proposal** means the written proposal form submitted by the **Insured** to the Underwriters, including any related documents and statements that have been submitted or provided by the **Insured** to the Underwriters in connection with the underwriting of this Policy. **23. Retroactive Date** means the date shown in Item 7 of the Schedule. **24. Schedule** means the schedule issued by the Underwriters. **25. Sublimit of Liability** means the applicable **Sublimit of Liability** as shown in Item 5 of the Schedule. **26. Territorial Limits** means the countries or territories as shown in Items 10 and 11 of the Schedule. **27. Underwriters** means the underwriter(s) named in Item 14 of the Schedule. **28. Wrongful Act** in respect of Insuring Agreements 1.1 and 1.2 means, any actual or alleged act, error or omission, neglect, breach of duty, breach of trust, misstatement, or misleading statement by an **Insured Person** in the course of their duties to or on behalf of the **Named Insured**.