Design and Construct Professional Indemnity Policy Wording

1.

INSURING CLAUSES .........................................................................................................................................................................5

2.

EXCLUSIONS .....................................................................................................................................................................................7

3.

CONDITIONS ......................................................................................................................................................................................9

4.

SPECIAL CONDITIONS ...................................................................................................................................................................11

5.

DEFINITIONS ...................................................................................................................................................................................11

APC Design and Construct PI Wording – 1113

2

In return for payment of the premium shown in the schedule, The Company agrees to insure the Insured, subject to the terms and conditions contained in or endorsed on the document, against loss or damage the Insured sustains or legal liability the Insured incurs for accidents happening during the period shown in the schedule for which the Insured has paid, or agreed to pay, the premium. When drawing up this document, the Company has relied on the information and statements which the Insured has provided in the proposal form (or declaration) on the date shown in the schedule or in any subsequent schedule issued to the Insured. The insurance relates ONLY to those sections of the document which are shown in the schedule as being included. The contract does not give, or intend to give rights to anyone else. No-one else has the right to enforce any part of this contract. The Company may cancel or change any part of the contract without getting anyone else’s permission. The written authority (which number is shown in the schedule) allows Anglo Pacific Consultants (London) Ltd to sign and issue this document on The Company’s behalf. Underwritten by:Liberty Mutual Insurance Europe Limited POLICYHOLDER COMPLAINTS The Company aims to give its policyholders a high level of service at all times. If at any time the Insured has any concerns regarding its contract of insurance, the Insured should in the first instance refer to its insurance broker/intermediary or advisor, if any. IF AT ANY TIME THE INSURED HAS A COMPLAINT REGARIDNG ITS CONTRACT OF INSURANCE, PLEASE WRITE TO: The Chief Operating Officer at Anglo Pacific Consultants (London) Ltd 80 Leadenhall Street London EC3A 3DH Alternatively the Insured can contact them by telephone on 020 7256 3100. It may be that Anglo Pacific Consultants (London) Ltd can resolve the Insured’s complaint over the phone. However the Insured’s complaint may require further investigation. If so, they will send the Insured a written acknowledgment within 5 working days stating:   

How the Insured’s complaint will be handled Who will handle the Insured’s complaint What the Insured needs to do, if anything.

The Insured’s complaint will be investigated by one of its trained staff. The Insured will be sent a detailed response within 4 weeks of receiving the Insured’s complaint. If Anglo Pacific Consultants (London) Ltd cannot respond in this time they will write to the Insured to explain and let the Insured know when the Insured should expect to receive a response. If the Insured has any concerns in the meantime, the Insured can contact the person identified on the acknowledgment letter. Their response will either:  

Accept the Insured’s complaint and offer some form of redress if necessary Reject the complaint giving full reasons for doing so.

IF ANGLO PACIFIC CONSULTANTS (LONDON) LTD CANNOT RESOLVE THE INSUREDS COMPLAINT, OR THE INSURED REMAINS DISSATISFIED THEY CAN REFER THEIR COMPLAINT TO US IN WRITING DIRECTLY. OUR ADDRESS IS DETAILED AS FOLLOWS, PLEASE QUOTE POLICY DETAILS ON ANY CORRESPONDENCE. Liberty Mutual Insurance Europe Limited 3rd Floor, Two Minster Court Mincing Lane London EC3R 7YE Telephone 020 7860 6600 Fax 020 7860 6290 APC Design and Construct PI Wording – 1113

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NOT SATISFIED WITH OUR RESPONSE? Liberty Mutual Insurance Europe Limited is a member of the Financial Ombudsman Service (FOS) and, in certain circumstances; the Insured may be eligible to refer their complaint to them. Further details will be provided at the appropriate stage of the complaints process. This complaint procedure is without prejudice to the Insured’s right to take legal proceedings. Please Note: The Ombudsman requires the Insured to follow Anglo Pacific Consultants (London) Ltd internal complaints procedure before the Insured refer their concerns to them, however the Insured has the right to go directly to the Ombudsman if their complaint has not been resolved within eight weeks. E.U. Disclosure Clause (UK): The Parties are free to choose the law applicable to this Insurance Contract. Unless specifically agreed to the contrary this insurance shall be subject to English Law. Data Protection Act 1998: It is understood by the Insured that any information provided to The Company by the Insured will be processed by the Company, in compliance with the provisions of the Data Protection Act 1998, for the purpose of providing insurance and handling Claims, if any, which may necessitate providing such information to third parties. Effected Through: Anglo Pacific Consultants (London) Ltd, 80 Leadenhall Street, London, EC3A 3DH. FREE LEGAL ADVICE HELPLINE: 0117 366 2349 As one of APCs Insured’s you have access to a free legal advice helpline to help with any day-to-day queries you may have regarding any potential claims. You can access this number during normal business hours

APC Design and Construct PI Wording – 1113

4

DESIGN AND CONSTRUCT PROFESSIONAL INDEMNITY INSURANCE POLICY (This is a claims made insurance policy – please read carefully) Whereas the Insured has made to the Company a written Proposal bearing the date stated in the schedule containing particulars and statements made to the best of the Insured’s knowledge and belief after enquiry which, together with any other information which may have been supplied, shall form the basis of this policy and are to be considered with the schedule as incorporated herein.

1.4

The Company hereby agrees to indemnify the Insured for costs and expenses necessarily and reasonably incurred with the prior written consent of the Company in respect of any action taken during the Period of Insurance to mitigate a loss or potential loss that would otherwise be the subject of a Claim covered under Insuring Clause 1.1 of this policy. The onus of proving that this Insuring Clause is applicable shall be upon the Insured. 1.5

INSURING CLAUSES

1.1

Professional Liability

The Company hereby agrees to indemnify the Insured up to but not exceeding the Limit of Indemnity stated in the schedule for any Claim (including Defence Costs) first made against the Insured and notified to the Company during the Period of Insurance directly arising from any Negligent Act on the part of Insured (or those acting on behalf of the Insured and for whom the Insured is responsible) in the course of the Insured’s Business. Provided that any rights of recourse against any Subcontractors or sub-consultants are not waived or otherwise impaired. 1.2

Loss of or Damage to Documents

The Company hereby agrees to indemnify the Insured in respect of costs and expenses which are reasonably incurred by the Insured with the Company’s prior written consent in replacing or restoring Documents which are either the property of or entrusted to, lodged or deposited with the Insured in the course of the Insured’s Business which have first been discovered by the Insured and notified to the Company during the Period of Insurance as having been destroyed, damaged, lost or mislaid and which after a diligent search cannot be found. Provided always that the Company shall not be liable for loss or damage arising out of wear and tear, gradual degradation, moth or vermin. For the purpose of this Insuring Clause there shall be no Deductible borne by the Insured and the Limit of Indemnity shall be limited to £50,000 in all for the Period of Insurance. 1.3

Legal Representation Costs

The Company hereby agrees to pay on behalf of the Insured any costs and expenses:

In consideration of the payment to the Company of the premium specified in the schedule, the Company agrees to indemnify the Insured to the extent and in the manner herein provided.

1.

Mitigation Costs

a)

which are incurred by the Insured during the Period of Insurance with the prior written consent of the Company for representation at properly constituted hearings, tribunals or proceedings arising out of any Claim first made during the Period of Insurance in respect of the conduct of the Insured’s Business which may be or may become the subject of indemnity under this Policy; and

b)

which are not otherwise indemnified as Defence Costs.

The maximum amount payable by the Company under this Insuring Clause shall not exceed £10,000 in the aggregate during the Period of Insurance. 1.6

Data Protection Act

The Company hereby agrees to indemnify the Insured in respect of any Claim or Claims first made against the Insured during the Period of Insurance by reason of Section 13 of the Data Protection Act 1998 and any amendments thereto. Provided always that indemnity shall only apply where the Insured has been accepted and registered by the Data Protection Registrar. 1.7

Collateral Warranties

The Company hereby agrees to indemnify the Insured in respect of all loss directly arising from any Claim first made against the Insured and notified to the Company during the Period of Insurance arising out of liability assumed by the Insured under any collateral warranty, duty of care agreement or similar agreements. Provided always that the Company shall not be liable for Claims arising from: a)

any warranty or agreement under which the Insured assumes a standard of care greater than the standard of reasonable skill and care normally expected in the Insured’s profession unless the Company’s specific written agreement is obtained and endorsed on the policy;

b)

any warranty or agreement which provides greater or longer lasting benefit than that given to the party with whom the Insured originally contracted;

Libel and Slander

The Company hereby agrees to indemnify the Insured against all loss directly arising from any Claim first made against the Insured and notified to the Company during the Period of Insurance in respect of libel or slander committed in good faith by reason of words, written or spoken by the Insured in the course of the Insured’s Business.

APC Design and Construct PI Wording – 1113

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1.8

Housing Grants Construction and Regeneration Act 1996

The Company will indemnify the Insured in respect of the amount of any award (of part thereof) made by an adjudicator in accordance with an adjudication clause contained in a contract (“the Contract”) pursuant to the Scheme for Construction Contracts Regulations 1997 under the Housing Grants, Construction and Regeneration Act 1996 (“notice of adjudication” and/or “referral notice”) to the same extent as would have been payable under this policy if a Claim had been made against the Insured in respect of the same facts provided always that as a condition precedent to coverage being afforded hereunder the Insured undertakes additionally to comply with both A and B as follows: A.

Grants, Construction & Regeneration Act 1996 shall be covered hereunder and not elsewhere under this policy. B.

CONDITIONS RELATING TO THE CONTRACT a)

b)

POLICY CONDITIONS a)

b)

c)

to notify the Company within 3 working days (or in any event prior to the appointment of the adjudicator) of receipt of any “notice of adjudication” and/or “referral notice” in circumstances which may lead to a Claim against the Insured being dealt with as a part of the adjudication; to promptly supply the Company with all details relating to any reference to adjudication, including copies of all documentation made available to the Insured, or subsequently by the Insured to the adjudicator; to allow the Company to appoint advisers and to have conduct of the adjudication as they deem appropriate and to cooperate with Company in the conduct of the adjudication; any appointments made by the Company shall be at the Company’s expense, but subject always to the application of the Deductible;

d)

to meet any request, direction or timetable of the adjudicator;

e)

to satisfy the Company that any liability incurred under an adjudicator’s decision for which indemnity is being sought, is as a direct result of a Negligent Act in the course of the Insured’s Business;

f)

to institute legal or arbitration in accordance with the terms of the original contract to challenge or reopen or stay the enforcement of such adjudicator’s decision if reasonably requested so to do by the Company and to allow the Company to appoint advisers they may deem necessary to have conduct of such proceedings if appropriate; any such steps made by the Insured shall be at the Company’s expense, but subject to the application of the Deductible;

g)

not to agree to accept the decision of the adjudicator as finally determining the

h)

dispute without the prior consent in writing of the Company;

i)

any indemnity provided to the Insured in connection with any adjudication including under the Housing

APC Design and Construct PI Wording – 1113

The adjudication provisions in the Contract shall: i)

provide that the adjudicator must be independent of the parties in the dispute;

ii)

not allow for the adjudicator’s decision to finally determine the dispute.

The Contract must not place any conditions upon the timing of commencement of legal or arbitration proceedings (for the sake of clarity, this does not apply to adjudication proceedings or other proceedings which have to be commenced within a stipulated period in order to prevent a certificate being conclusive as to the matters to which it relates).

In the absence of any adjudication clause in a Contract, indemnity hereunder will apply to the Government’s Scheme for Construction Contracts where this is applicable. For the avoidance of doubt, this Insuring Clause does not in any way limit the Company’s rights of subrogation under Condition 3.10. 1.9

Construction Regulations

(Design

and

Management)

The Company hereby agrees to indemnify the Insured for any costs and expenses incurred with the prior written consent of the Company in the defence of any criminal proceedings brought against the Insured arising from an alleged breach of the Construction (Design and Management) Regulations 1994 and/or Construction (Design and Management) Regulations 2007 where such alleged breach arises in the course of the Insured’s Business provided that; a)

the circumstances giving rise to such proceedings could otherwise give rise to indemnity under this policy; and

b)

in the reasonable belief of the Company, the defence of such proceedings would assist in the defence of any Claim against the Insured arising from such circumstances; and

c)

any subsequent or concurrent civil action arising out of proceedings notified hereunder shall be deemed to be notified in accordance with Condition 3.4 - Claims Reporting.

Provided always that the Company shall not be liable for any fines, penalties, punitive, exemplary, aggravated or multiplied damages.

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2.

EXCLUSIONS

Notwithstanding anything herein to the contrary the Company shall not afford any indemnity in respect of any Claim or for any loss, costs or expenses: 2.1

Adjudication – Final Awards

arising from a contract which specifies the decision of an adjudicator as finally determining any dispute unless prior written consent has been given by the Company. However, this exclusion shall not apply where the liability of the Insured would have existed to the same extent in the absence of such contractual provision. 2.2

Asbestos

arising out of, resulting from, in consequence of or in any way involving asbestos or any materials containing asbestos in any form or quantity. 2.3

Assumed Obligations

This exclusion shall not apply where such liability is otherwise indemnifiable hereunder and arises from negligent design of materials or negligent specification of materials where such negligent design or specification is by the Insured and arises directly in the course of the Insured’s Business. 2.8

Directors’ and Officers’ Liability

arising directly or indirectly from advice given or services performed by the Insured in the capacity of director or officer of any corporate entity or unincorporated association. 2.9

Dishonest or Fraudulent Acts

arising directly or indirectly from any dishonest or fraudulent acts(s) or omission(s) committed or condoned by any present or former partner, director, sole principal or Employee of the Insured, save that this exclusion will not apply to any Insured who is not concerned in such dishonesty or fraud in respect any Claim arising from any dishonest or fraudulent act(s) or omission(s) committed before the discovery of reasonable cause for suspicion of fraud or dishonesty on the part of that person. 2.10

directly or indirectly arising out of, or in any way involving, any liability, duty or obligation incurred or assumed by the Insured which is not incurred or

Employment Practices Liability a)

arising directly or indirectly out of death, disease, bodily injury, psychological injury, emotional distress or anguish, shock or sickness sustained by any person who is or has been under a contract of service with the Insured or any person who has made an application for employment under a contract of service with the Insured;

b)

for the wrongful or unfair dismissal, termination, repudiation or breach of contract of employment, discrimination or harassment sustained by any person who is or has been under a contract of service with the Insured or any person who has made an application for employment under a contract of service with the Insured.

assumed in the normal conduct of businesses similar to the Insured’s Business. 2.4

Contractual Liabilities

arising from any warranty, indemnity, guarantee, or undertaking given by any Insured in the course of the Insured’s Business save where such liability would have attached to that Insured in the absence of such a warranty, indemnity, guarantee or undertaking by reason of a Negligent Act by the Insured in the course of the Insured’s Business. 2.5

Damage to Property

for loss, damage or destruction of any real or personal property, including any consequential loss flowing from such loss, damage or destruction (save as provided for in Insuring Clause 1.2) unless arising directly from a Negligent Act by the Insured in the course of the Insured’s Business. 2.6

Failure to Maintain Insurance

arising out of any liability whatsoever arising out of: a)

the failure to procure or maintain insurance;

b)

or in connection with any failure to obtain and maintain adequate financing for a project;

c)

or in connection with the provision of finance or advice on financial matters.

Death or Injury

for the death of, disease, bodily injury, psychological injury, emotional distress or anguish, shock or sickness to any person unless arising directly from a Negligent Act by the Insured in the course of the Insured’s Business. 2.7

2.11

Defective Workmanship

arising out of defective workmanship, defective materials, manual labour operations, or any defective materials, workmanship or production techniques used in the actual manufacture of any product or for any liability arising out of any fitness for purpose obligation howsoever arising in relation to workmanship, materials or any product. APC Design and Construct PI Wording – 1113

2.12

Financial Estimates

arising from or in connection with any financial estimates of probable construction costs other than cost advice and cost planning services normally provided by a quantity surveyor. 2.13

Fines and Penalties

for taxes, fines, penalties, or penal, punitive, multiple, exemplary, restitution, non-compensatory or aggravated damages. 7

2.14

Geographical and Jurisdiction Limits

arising out of: a)

work in connection with any contract performed outside the Geographical Limits;

b)

any judgment, award, payment or settlement made within countries which operate under the laws of the United States of America or Canada;

c)

any order made anywhere in the world to enforce a judgment, award, payment or settlement, either in whole or in part, made in the Courts of or under the laws of the United States of America or Canada.

2.15

2.21

Mould

arising from or attributable wholly or partially to: a)

any Fungus(i), Mould(s) mildew or yeast;

b)

any spore or toxins created or produced by or emanating from such Fungus(i), Mould(s), mildew or yeast;

c)

any substance, vapour, gas, or other emission or organic or inorganic body or substance produced by or arising out of any Fungus(i), Mould(s), mildew or yeast;

d)

any material, product, building component, building or structure, or any concentration of moisture, water or other liquid within such material, product, building component, building or structure that contains, nurtures or acts as a medium for any Fungus(i), Mould(s), mildew, yeast, or spore(s) or toxins emanating therefrom;

Insolvency

arising directly or indirectly from the insolvency, receivership, bankruptcy, liquidation or financial difficulties of the Insured or of any Subcontractor or sub-consultant. 2.16

Intellectual Property

arising directly or indirectly out of infringement or breach of copyright, patent, registered design, trade mark or any other intellectual property rights or passing off. 2.17

Joint Ventures and Consortia

regardless of any other cause, event, material, product and/or building component that contributed concurrently or in any sequence. For the purposes of this exclusion, the following definitions are added to this policy:

which results directly or indirectly from the operation or existence of any joint venture or consortia in which the Insured has an interest unless the Company’s prior written consent to such joint venture or consortia is obtained and endorsed on the policy. 2.18

Fungus(i) includes, but is not limited to, any plants or organisms belonging to the major group fungi, lacking chlorophyll, and including moulds, rusts, mildews and mushrooms. Mould(s) includes, but is not limited to, any superficial growth produced on damp or decaying organic matter or on living organisms, and fungi that produced moulds.

Known Circumstances

arising from, contributed to or consequent upon any Claim or circumstance: a)

b)

2.19

known to the Insured prior to the inception of this policy or which in the reasonable opinion of the Company ought to have been known to the Insured;

2.22

of whatsoever nature caused directly or indirectly by, or contributed to by, or arising from:

notified or which ought to have been notified by the Insured under any other insurance prior to the inception of this policy (whether insured by the Company or not).

a)

any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

b)

ionising radiations or contamination by radioactivity from any or from any nuclear waste from the combustion of nuclear fuel.

Liability arising out of Ownership of Property

arising directly or indirectly from the ownership, possession or use by the Insured of land, buildings, aircraft, watercraft, vessels or mechanically propelled vehicles. 2.23 2.20

Nuclear Risks

Liquidated Damages

arising from an agreement by the Insured to pay penalties or liquidated damages unless liability would have attached to the Insured in the absence of such penalty clause or liquidated damages clause by reason of a Negligent Act by the Insured in the course of the Insured’s Business. APC Design and Construct PI Wording – 1113

Other Insurance

in respect of which an Insured is or, but for the existence of this policy, would be entitled to indemnity under any other insurance except in respect of any excess beyond the amount which would have been payable under such other insurance had this policy not been effected.

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2.24

Own Profit

for any element of any of the Insured’s own profit that may be included in the cost of rectifying any defects in work performed by or on behalf of the Insured. 2.25

Pollution

arising out of or relating directly or indirectly to or in consequence of actual or alleged seepage, pollution or contamination of any kind except to the extent that the Insured can demonstrate that such seepage, pollution or contamination: a)

was a direct result of an unintended sudden specific and identifiable event; and

b)

the Claim is first made and notified during the Period of Insurance being the consequence of a Negligent Act otherwise indemnifiable hereunder; and

c)

2.26

was not the result of the Insured failing to take reasonable precautions to prevent such seepage, pollution or contamination. Related Companies

other cause or event contributing concurrently on in any other sequence to the loss. This exclusion also applies to 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 any such act of Terrorism. If the Company alleges 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. 2.30

Trading Debts

for any trading losses or trading liabilities incurred by the Insured or any business managed by or carried on by or on behalf of the Insured. 2.31

War

of whatsoever nature caused directly or indirectly by, or contributed to by, or arising from:

any Claim brought by: a)

any parent or subsidiary company of the Insured or any company having the same parent company as the Insured;

b)

any person or entity who exercises or has exercised an executive or controlling financial interest in the Insured;

c)

any other company in which the Insured has a majority shareholding;

d)

any entity where the Insured has accepted a financial interest, irrespective of the amount, in any entity in exchange for fees incurred;

a)

war, invasions, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, riot, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power, confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority;

b)

any action taken in controlling, preventing or suppressing a) above.

3.

CONDITIONS

provided that this exclusion shall not apply to such Claims originating from an independent third party.

The Company shall be under no liability in respect of any Claim or circumstances in respect of which there has been a breach of any condition designated below as a Condition Precedent.

2.27

3.1

Retroactive Date

arising from any Negligent Act committed or alleged to have been committed prior to any retroactive date stated in the schedule. 2.28

Rights of Third Parties

any person who is not a party to this policy has no rights under the Contracts (Rights of Third Parties) Act 1999 or any amendment or re-enactment thereof to enforce any term of this policy. 2.29

Terrorism

of whatsoever nature directly or indirectly caused by, resulting from or in connection with any act of Terrorism regardless of any APC Design and Construct PI Wording – 1113

Limit of Company’s Liability

The Company’s aggregate liability for each and all Claims covered by this policy under Insuring Clauses 1.1 to 1.9 including Defence Costs shall not exceed the Limit of Indemnity specified in the schedule. For the avoidance of doubt, any sub-limits provided within this policy or included by endorsement shall be part of and not in addition to the Limit of Indemnity. 3.2

The Deductible a)

The Company’s liability in respect of any Claim shall only be in excess of the Deductible.

b)

Payment of the Deductible is a Condition Precedent and the Insured shall upon reasonable request by the 9

3.3

Company confirm its agreement to pay and demonstrate its ability so to do.

its investigation of the Claim or circumstances and shall cooperate fully in the defence.

Claim Reporting

The Company shall be entitled, but not obliged, at any time to take over and conduct in the name of the Insured the defence, investigation or settlement of any such Claim and to conduct an investigation into circumstances notified under Condition 3.4 above which are likely to give rise to a Claim and to receive at all times the full cooperation of the Insured for this purpose. Nevertheless neither the Insured nor the Company shall be required to contest or continue to contest any legal proceedings or arbitration unless a Queens Counsel (to be mutually agreed upon by the Insured and the Company) shall advise that, taking due account of the interests of both the Company and the Insured, such proceedings should be contested.

It is a Condition Precedent that the Insured shall give to the Claims Department of the Company notice in writing as soon as reasonably practicable during the Period of Insurance of: a)

any Claim made against any Insured;

b)

the receipt of any notice from any party of an intention to make a Claim against the Insured;

c)

the discovery of reasonable cause for suspicion of dishonesty or fraud on the part of any partner, director, sole principal, Employee or any other Insured whether or not giving rise to a Claim or to circumstances which are likely to give rise to a Claim;

d)

3.4

the discovery that Documents have been destroyed, damaged, lost or mislaid and which after a diligent search cannot be found and for which cover for the costs and expenses of replacing or restoring is afforded under Insuring Clause 1.2.

For the avoidance of doubt, this Condition shall also apply to Insuring Clause 1.4 – Mitigation Costs. 3.7

Discovery of Dishonesty or Fraud

Upon the discovery of any dishonest or fraudulent act or omission on the part of any present or former partner, director, sole principal, or Employee, the Insured must: a)

immediately take all reasonable steps to prevent any loss or Claim; and

b)

if the Company so request, take all reasonable steps at the Insured’s expense to effect a recovery from the Insured committing or condoning or otherwise concerned in such fraud or dishonesty or the estates and/or legal representatives of that Insured; and

c)

account to the Company for:

Circumstances which may give rise to a Claim

It is a Condition Precedent that the Insured shall give to the Claims Department of the Company notice in writing as soon as reasonably practicable during the Period of Insurance of any circumstances of which any Insured becomes aware which may give rise to a loss or Claim against any Insured irrespective of the Insured’s views as to the validity of such Claim. Any Claim which may subsequently be made arising from such circumstances shall be deemed to have been first made in the Period of Insurance in which such notice is given. 3.5

i)

any monies, asset or entitlement held by the Insured and belonging to any Insured committing, condoning or otherwise concerned in the fraud or dishonesty provided that the Insured is legally entitled to withhold the monies, asset or entitlement from that Insured;

ii)

any monies recovered following any action carried out pursuant to sub- clause b) above.

Notice

Notice under Conditions 3.3 and 3.4 shall be deemed to have been properly given when received in writing by:Anglo Pacific Consultants (London) Ltd 80 Leadenhall Street London EC3A 3DH Tel: Fax: Email:

0207 256 3102 0207 256 3109 [email protected]

3.6

Conduct of Claim

It is a Condition Precedent that the Insured shall not admit liability, make any offer, promise or payment, enter into any compromise, settle or incur any Defence Costs in relation to any Claim or Claims or any circumstance(s) which may give rise to a Claim or Claims notified under Condition 3.4 without the prior written consent of the Company. In the event of notification of a Claim or circumstances which may give rise to a Claim notified under Condition 3.4, the Insured will render all reasonable assistance to the Company in APC Design and Construct PI Wording – 1113

The rights of the Company under this clause are in addition to its rights of subrogation against any Insured or other person committing, condoning or otherwise concerned in any such dishonest or fraudulent act or omission. 3.8

False or Fraudulent Claims

If any Insured shall prefer any Claim knowing the same to be false or fraudulent as regards the amount or otherwise, this policy shall become void and all Claims and payments hereunder shall be forfeited. 3.9

Governing Law and Jurisdiction

This policy is governed by and shall be construed in accordance with the laws of England of Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of England of Wales. 10

3.10

Subrogation a)

afford any indemnity in respect of any Claim or for any loss, costs or expenses:

If any payment is made under this policy the Company will be subrogated to all rights of each Insured against any person or party from whom a recovery of the whole or any part thereof may be made;

b)

No Insured shall surrender, compromise or do anything to prejudice any such right or Claim whether before or after payment by the Company under this policy without the consent in writing of the Company;

c)

Any such recovery shall be applied in reimbursement in the following order: i)

to the costs of securing the recovery;

ii)

to the payment made by the Company;

iii)

any Deductible or other payment made by any Insured.

3.11

The Company hereby agrees that it will waive any right of recovery against any Insured to which it may be subrogated except for any right in respect of any payment made by the Company as a direct or indirect result of a dishonest or fraudulent act or omission against any Insured committing, condoning or otherwise concerned in the fraud or dishonesty. Arbitration

Any dispute or difference hereunder shall be determined by a single arbitrator having no less than ten years relevant insurance industry experience as a lawyer or otherwise to be appointed by agreement between the parties or in default of agreement by the President for the time being of the Chartered Institute of Arbitrators upon the application of any party. 3.12

b)

the Insured has paid or agreed to pay any additional premium charged and/or accept any revised terms and conditions.

Change in Control

Where the Insured undergoes a Change in Control during the Period of Insurance, the Insured will notify the Company within 14 days of the Change in Control. This policy will continue to provide cover until the expiry of the Period of Insurance but only in respect of Negligent Acts committed prior to the effective date of the Change in Control. 4.4

The Company’s Rights

In the event of the Company being entitled to avoid this policy ab initio, the Company may at is election instead give notice in writing to the Insured that they regard this policy as of full force and effect save that there shall be excluded from any insurance afforded hereunder any Claim or loss which has arisen or which may arise and which is related to the circumstances which entitle the Company to avoid this policy. This policy shall then continue in full force and effect but shall be deemed to exclude the particular Claim or loss referred to in the said notice (as if the same had been specifically endorsed ab initio). 4.5

Cancellation

Data Protection Act 1998

It is agreed by the Insured that information provided to the Company regarding the Insured will be processed by the Company in compliance with the provisions of the Data Protection Act 1998 for any purposes in connection with or relating to this policy which may necessitate providing such information to third parties.

4.

SPECIAL CONDITIONS

4.1

Attribution

The Company may cancel this policy by giving thirty days written notice to the Insured at the address stated in the schedule in the event of non-payment of premium. Upon such cancellation the Company shall be entitled to retain or be paid such proportion of the Premium as the period for which it was on risk bears to the Period of Insurance but the full policy premium shall be payable to the Company in the event of notification of a Claim, loss or circumstance which may give rise to a Claim prior to the date of cancellation. 4.6

Notwithstanding the terms of Definition 5.9 the knowledge of each Insured shall be attributed to each other Insured for the purposes only of the Insured’s duties of disclosure and all and any representations or statements made by or on behalf of any Insured in the negotiation and agreement of this policy. 4.2

unless and until the Company has agreed in writing to accept the altered risk; and

For the avoidance of doubt, if the Company does not agree to amend the policy in respect of the altered risk, this policy will continue to provide cover until the expiry of the Period of Insurance but only in respect of Negligent Acts committed prior to the effective date of the change. 4.3

d)

a)

Alteration

The Insured shall give the Company immediate written notice of any material change in the identity of the Insured or the nature of scope of the Insured’s Business and the Company shall not APC Design and Construct PI Wording – 1113

Joint Policy

For the avoidance of doubt, the indemnity afforded under the terms of this policy is provided jointly to all parties constituting the Insured as defined herein and for all purposes this policy shall be considered as a joint policy with a single Limit of Indemnity.

5.

DEFINITIONS

In this policy unless the context otherwise requires the following terms have the meanings set out below: 11

5.1

Change in Control

and under the control of the Insured in the conduct of the Insured’s Business.

The happening of any of the following: a)

5.2

the Insured consolidates or merges into, or sells all or substantially all of its assets to any person, entity or group of persons or entities acting in concert;

b)

the Insured becomes a subsidiary of another entity or becomes controlled by another unconnected entity;

c)

the appointment of a liquidator, receiver or administrator (or equivalent) over the Insured;

d)

the withdrawal of the Insured’s authorisation to carry out the Insured’s Business by its regulator.

5.8

Geographical Limits

Worldwide excluding United States of America and Canada, unless stated otherwise in the schedule. 5.9

Insured a)

The firm or persons named in the schedule or their assignee in bankruptcy or the estate personal representatives or trustees;

b)

Any past present or future partner, director or principal of the firm but only whilst acting or having acted within the scope of the Insured’s Business.

Claim 5.10

A demand for civil compensation or damages from, or the assertion of a right against, any Insured which arises out of the Insured’s Business 5.3

The Company

Liberty Mutual Insurance Europe Limited 3rd Floor, Two Minster Court Mincing Lane London EC3R 7YE Telephone: Fax: 5.4

020 7860 6600 020 7860 6290

The Professional Activities and Duties provided by the Insured. 5.11

The maximum total liability of the Company as specified in the schedule or as may be specifically endorsed to this policy to indemnify the Insured within the terms and conditions of this policy unless otherwise expressly limited. 5.12

Defence Costs

Documents

All records of whatsoever nature whether written printed or reproduced by any other method including computer systems records (providing the Insured maintains duplicates of such records), but excluding bearer bonds, coupons, bank notes, currency notes and negotiable instruments. 5.7

Negligent Act

Negligent act(s), negligent error(s) or negligent omission(s). 5.13

Period of Insurance

The period of insurance specified in the schedule or as may be specifically endorsed to this policy. 5.14

Employee

Any natural person, other than a partner, director or principal of the Insured, under a contract of service or apprenticeship with the Insured whilst such person(s) are employed or engaged by APC Design and Construct PI Wording – 1113

Professional Activities and Duties

The performance by the Insured of any professional design or specification or inspection or supervision of construction or feasibility study or technical information calculation or surveying undertaken by or under the supervision of:

All legal costs and expenses incurred with the Company’s prior written consent in the investigation defence or settlement of any Claim or circumstance notified to the Company within the terms of this policy. 5.6

Limit of Indemnity

Deductible

The amount that the Insured is first required to pay towards each and every loss or Claim as shown in the schedule provided always that all Claims against the Insured attributable to the same Negligent Act or series of Negligent Acts originating from the same cause or source shall for this purpose only be deemed to be one Claim and one Deductible shall apply. 5.5

Insured’s Business

a)

personnel who are professionally qualified;

b)

technical personnel having not less than less than five years relevant technical experience

in the carrying out of activities and duties for which they are qualified or technically experienced. For the avoidance of doubt Professional Activities and Duties do not include the supervision of manual operatives, labour and physical construction work usually undertaken by building or engineering contractors. 5.15

Proposal

The written information bearing the date stated in the schedule together with any other information supplied to the Company.

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5.16

Subcontractor

A specialist designer, consultant or other construction professional engaged by the Insured to perform Professional Activities and Duties. 5.17

Terrorism

An act, including but not limited to the use of force or violence and/or the threat thereof, by any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organization(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. Authorised by a Company Official

Sean Patrick Rocks Chief Executive Officer Liberty Mutual Insurance Europe Limited

APC Design and Construct PI Wording – 1113

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