XL SPECIALTY INSURANCE COMPANY
(A Stock Insurance Company Herein Called the “Company”)
PROFESSIONAL LIABILITY POLICY –
LANDSCAPE ARCHITECTS
AN
THIS IS A “CLAIMS-MADE AND REPORTED” POLICY. THIS POLICY REQUIRES THAT A CLAIM BE MADE
AGAINST THE INSURED DURING THE POLICY YEAR AND REPORTED TO THE COMPANY, IN WRITING,
DURING THE POLICY YEAR.
CERTAIN PROVINCES MANDATED SPECIFIC WARNINGS, EXCEPTIONS OR CONDITIONS. PLEASE READ
THIS POLICY CAREFULLY, INCLUDING THE DECLARATIONS AND ALL ENDORSEMENTS.
THIS POLICY CONTAINS PROVISIONS THAT MAY LIMIT THE AMOUNT PAYABLE.
I.
INSURING AGREEMENT
A.
IM
In consideration of the payment of the Policy Premium stated in Item 5. of the Declarations and in reliance upon the
statements contained in the Application and any other supplemental materials and information submitted herewith,
and subject to all the terms and conditions of this Policy, the Company agrees with the NAMED INSURED as
follows:
Coverage A – Professional Liability
1.
The CLAIM arises out of any WRONGFUL ACT;
2.
Such WRONGFUL ACT must have been committed or alleged to have been committed
subsequent to the Retroactive Date(s) stated in Item 6. of the Declarations; and
3.
Prior to the ANNIVERSARY DATE stated in Item 7. of the Declarations, none of the
INSURED’s directors, officers, principals, partners or insurance managers knew or could
have reasonably expected that such WRONGFUL ACT might give rise to a CLAIM.
Coverage B – Network Security Liability
SP
B.
EC
To pay on behalf of the INSURED all sums in excess of the Deductible, subject to the Policy Limits
of Liability, which the INSURED shall become legally obligated to pay as DAMAGES as a result of
CLAIMS first made against the INSURED during a POLICY YEAR within the POLICY PERIOD and
first reported to the Company, in writing, during that POLICY YEAR, provided that:
To pay on behalf of the INSURED all sums in excess of the Deductible, subject to the Policy Limits
of Liability, that the INSURED becomes legally obligated to pay as DAMAGES as a result of any
CLAIM(S) first made against the INSURED during a POLICY YEAR and first reported to the
Company, in writing, during that POLICY YEAR, provided that:
1.
2.
The CLAIM(S) arises out of a NETWORK SECURITY COMPROMISE that either:
a.
causes a NETWORK BREACH; or
b.
prevents a third party that is authorized to do so from gaining access to a
NETWORK;
The NETWORK SECURITY COMPROMISE was committed or alleged to have been
committed on or after the Retroactive Date(s) stated in Item 6. of the Declarations; and
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 1 of 17
3.
II.
Prior to ANNIVERSARY DATE stated in Item 7. of the Declarations, none of the
INSURED’s directors, officers, principals, partners or insurance managers knew or could
have reasonably expected that such NETWORK SECURITY COMPROMISE might give
rise to a CLAIM.
SUPPLEMENTARY PAYMENTS
All payments made under this section are not subject to the Deductible and are in addition to the Limits of
Liability.
Defendant Reimbursement
AN
A.
The Company shall reimburse the INSURED, upon written request, for actual loss of earnings and
reasonable expenses incurred for the INSURED’s attendance at any mediation or arbitration
proceedings, hearings, depositions and trials relative to the defence of a CLAIM(S). The Company
shall pay up to $500 per day in the aggregate for all INSUREDS, subject to a maximum of $25,000
all CLAIMS made against the INSURED and reported to the Company during each POLICY YEAR.
The Company will not compensate the INSURED for the first three (3) days.
B.
Loss Prevention Assistance
C.
IM
If the INSURED reports a CIRCUMSTANCE during the POLICY PERIOD, in accordance with
Section IX. NOTICE, Part C., until such time a CLAIM is made, any costs or expenses the
Company incurs as a result of investigating or monitoring such CIRCUMSTANCE, will be paid for
by the Company. The decision to incur any costs or expenses to monitor or investigate such
CIRCUMSTANCE shall be at the sole discretion of the Company.
Legal Expense Reimbursement for Disciplinary Hearings
D.
EC
The Company shall reimburse the INSURED, upon written request, for reasonable legal expense
incurred in the event a disciplinary hearing is commenced against the INSURED by their
professional association during the POLICY YEAR. The maximum payment made by the
Company pursuant to this coverage extension shall be $25,000 for all INSUREDS for each
POLICY YEAR regardless of the number of disciplinary hearings. The Company shall not pay
DAMAGES pursuant to this extension.
Legal Expense Reimbursement for Occupational Health and Safety Act
SP
The Company shall reimburse the INSURED, upon written request, for reasonable legal expense
incurred in response to an action brought against the INSURED in relation to the Occupational
Health and Safety Act, (Ontario) as amended and equivalent legislation in other provinces and
territories during the POLICY YEAR. The maximum payment made by the Company pursuant to
this coverage extension shall be $25,000 for all INSUREDS for each POLICY YEAR regardless of
the number of actions commenced against the INSURED. The Company shall not pay DAMAGES
pursuant to this extension.
E.
Loss of Documents Reimbursement
The Company shall reimburse the INSURED, upon written request, for reasonable expenses
incurred by the INSURED during the POLICY YEAR in the event that any of the INSURED’s
DOCUMENTS have been destroyed, damaged, lost or mislaid and after diligent search cannot be
located. The maximum payment made by the Company pursuant to this coverage extension shall
be $15,000 for all INSUREDS for each POLICY YEAR. The Company shall not pay DAMAGES
pursuant to this extension.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 2 of 17
For the purpose of this coverage, DOCUMENTS means those written or printed DOCUMENTS
used in the performance of the INSURED’s PROFESSIONAL SERVICES. DOCUMENTS does not
mean electronic or media or materials stored in electronic format.
F.
Crisis Event and Reputation Management Coverage
The Company shall reimburse the NAMED INSURED, upon written request and with prior consent
from the Company, for CRISIS EVENT EXPENSES paid in response to a CRISIS EVENT first
occurring and reported to the Company during the POLICY YEAR, subject to a maximum of
$30,000 per POLICY YEAR regardless of the number of CRISIS EVENTS.
AN
DEFINITIONS
A.
CIRCUMSTANCE means an event or occurrence from which the INSURED reasonably expects
that a CLAIM could be made.
B.
CLAIM means a demand received by the INSURED for money or services and which alleges one
or more of the following:
1.
A WRONGFUL ACT arising from the performance of PROFESSIONAL SERVICES; or
2.
A NETWORK SECURITY COMPROMISE.
IM
III.
The definition of CLAIM shall include, but not necessarily be limited to lawsuits, petitions,
arbitrations or other alternative dispute resolution requests filed against the INSURED.
C.
CLAIM EXPENSES means:
Legal fees and expenses incurred by the Company in the investigation, defence and
appeal of a CLAIM by attorney(s) retained by the Company; or
EC
1.
2.
All other fees, costs, or expenses resulting from the investigation, adjustment, defence and
appeal of such CLAIM, if incurred by the Company, or with the written consent of the
Company, by the INSURED.
CLAIM EXPENSES does not include salary, charges of, or expenses incurred by regular
employees or officials of the Company or fees and expenses of supervisory counsel or
independent adjusters retained by the Company. In addition, the time and expense incurred by the
INSURED in assisting in resolving a CLAIM, including but not limited to the costs of the INSURED’s
in-house counsel, are not CLAIMS EXPENSES.
NETWORK means a connected system or computing hardware, software, firmware and associated
electronic components under the ownership, operation or control of, or leased by, an INSURED.
SP
D.
E.
DAMAGES means a monetary judgment, award or settlement of compensatory damages.
DAMAGES includes associated pre-judgment and/or post-judgment interest.
DAMAGES shall also include the INSURED’s legal obligation to reimburse any person or entity for
their reasonable defence costs, but only to the extent caused by an actual negligent act, error or
omission in the performance of PROFESSIONAL SERVICES to which this Policy applies, and only
if such defence costs are awarded by a court or arbitrator of competent jurisdiction.
DAMAGES does not include fines, taxes, penalties, or punitive, exemplary, or multiplied damages,
injunctive or equitable relief, or the return or reduction of fees or charges for services rendered or
expenses incurred by the INSURED for redesign, changes, additions or remedies necessitated by
a CLAIM. The time and expense incurred by the INSURED in assisting in resolving a CLAIM are
not DAMAGES.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 3 of 17
However, DAMAGES will include fines, taxes, and penalties assessed against a third party for
which the INSURED is legally liable.
F.
DATA BREACH means the unauthorized taking, acquisition, obtaining, use or disclosure of
information on a NETWORK. DATA BREACH does not include the unauthorized taking,
acquisition, obtaining, use or disclosure of PERSONALLY IDENTIFIABLE INFORMATION.
G.
INSURED means the NAMED INSURED, PREDECESSOR FIRM and:
A current, former or retired partner, principal, director, officer or employee of a NAMED
INSURED or PREDECESSOR FIRM, including any individual or firm engaged as
temporary staff working on behalf of and under the direct supervision and control of the
NAMED INSURED, but only for PROFESSIONAL SERVICES, or managing the security of
a NETWORK within the scope of their duties for the NAMED INSURED or
PREDECESSOR FIRM.
2.
A Partner, principal, director, officer of a NAMED INSURED who was a sole proprietor,
partner, principal, director or officer of a professional practice that has been dissolved or
has discontinued to perform PROFESSIONAL SERVICES, but only for CLAIMS arising out
of that individual’s PROFESSIONAL SERVICES and not the PROFESSIONAL SERVICES
of others in that professional practice.
3.
With respect to Coverage A – Professional Liability, any NAMED INSURED with respect to
its participation in a legal entity including a joint venture, but solely for the NAMED
INSURED’s legal liability for the performance of PROFESSIONAL SERVICES by the
respective legal entity or joint venture. INSURED does not include the legal entity itself,
the joint venture itself or any other entity that is part of the legal entity or joint venture.
4.
All newly acquired and/or newly created firms provided that such firm is declared to the
Company within sixty (60) days of the date of acquisition or creation, but only for
PROFESSIONAL SERVICES performed or from a NETWORK SECURITY COMPROMISE
subsequent to that date and are then specifically added as a NAMED INSURED.
EC
IM
AN
1.
5.
The legal representative of any deceased individual described above, but only to the extent
of that individual’s rights and duties under this Policy.
MALICIOUS CODE means any unauthorized, corrupting or harmful virus, Trojan Horse, worm,
logic bomb or other similar software program, code or script designed to insert itself onto a
computer disk or into computer memory and migrate from one computer to another.
I.
MEDIATION means the voluntary and otherwise non-binding process by which a qualified,
professional mediator mutually agreed upon intercedes between parties with the intention to
reconcile them to resolve the CLAIM.
SP
H..
J.
NAMED INSURED means the individual, partnership, trust, corporation, or other entity stated in
Item 1. of the Declarations.
K.
NETWORK BREACH means:
1.
The alleged or actual UNAUTHORIZED ACCESS to a NETWORK that results in:
a.
the destruction, deletion or corruption of electronic data on a NETWORK;
b.
a DATA BREACH from a NETWORK;
c.
denial of service attacks against Internet sites or computers;
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 4 of 17
d.
2.
PERSONAL INJURY; or
Transmission of MALICIOUS CODE from a NETWORK to third-party computers.
A series of continuing NETWORK BREACHES or related, repeated or similar NETWORK
BREACHES shall be considered a single NETWORK BREACH and be deemed to have occurred
at the time of the first such NETWORK BREACH.
NETWORK SECURITY COMPROMISE means an actual or alleged negligent act, error or
omission by the INSURED in managing the security of a NETWORK.
M.
PERSONAL INJURY means injury arising out of false arrest, detention, or imprisonment; wrongful
entry, eviction, or other invasion of a right of privacy; libel, slander, utterance, electronic
distribution, or publication in violation of a right of privacy; malicious prosecution; or the
unintentional infringement of copyright or patent.
N.
PERSONALLY IDENTIFIABLE INFORMATION means:
AN
L.
Personal information as defined in the federal Personal Information Protection and
Electronic Documents Act (PIPEDA) as amended, and in equivalent provincial and
territorial legislation, concerning the individual;
2.
Personal health information as defined in PIPEDA, the Personal Health Information
Protection Act (Ontario) as amended and equivalent legislation in other provinces and
territories, concerning the individual;
3.
Information, whether printed or digital, encrypted or unencrypted, in an INSURED’s or
outsourced provider’s care, custody or control, that singularly or in combination can
uniquely identify an individual, including but not limited to such information as name, Social
Insurance number, address, birth date, physical characteristics, IP address, biometric
record, unique mobile device identifier, geo-location data, mobile telephone number, email
address, user name, text message or email, call log, contacts and address book entries,
financial or payment information, health or medical information, photos or videos or internet
browsing history; or
EC
IM
1.
4.
Other personal information about the individual that is protected under any provincial,
territorial, federal or foreign statute or regulation.
SP
However, PERSONALLY IDENTIFIABLE INFORMATION does not include any information that is
lawfully available to the general public.
O.
POLICY PERIOD means the period from the effective date of this Policy to the Policy expiration
date as stated in Item 2. of the Declarations or its earlier termination date, if any. If the length of
the POLICY PERIOD is the same as the POLICY YEAR, the terms POLICY PERIOD and POLICY
YEAR are used interchangeably herein.
P.
POLICY YEAR means each consecutive twelve (12) months of the POLICY PERIOD beginning on
the effective date shown in the Declarations. However, if a POLICY YEAR within a POLICY
PERIOD is modified by an endorsement, then that modified year will be deemed a POLICY YEAR
for the purpose of determining the aggregate Limit of Liability and any aggregate Deductible.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 5 of 17
Q.
POLLUTANTS means any solid, liquid, gaseous or thermal irritant or contaminant, including gas,
smoke, vapour, soot, fumes, acids, alkalis, chemicals and WASTE. Heat, smoke, vapour, soot or
fumes from a HOSTILE FIRE are not considered POLLUTANTS.
For the purpose of this definition, HOSTILE FIRE means a fire or explosion which is uncontrolled or
breaks out from where it was intended to be and WASTE is including, but not limited to, materials
to be recycled, reconditioned or reclaimed.
R.
POLLUTION means the actual, alleged or threatened discharge, dispersal, release or escape of
POLLUTANTS.
AN
This definition does not include POLLUTION arising out of:
Wastewater, STORM WATER and domestic sewage collection and treatment systems,
including those receiving industrial WASTE, but only if such industrial WASTE is pre-treated
in accordance with applicable governmental or regulatory standards; or
2.
Potable water systems; or
3.
Heating, ventilation, or air conditioning systems or electrical systems; but systems designed
for the purpose of controlling POLLUTANTS remain within this definition.
IM
1.
For the purpose of this definition, STORM WATER means water from rain, hail, snow or sleet.
PREDECESSOR FIRM means any firm that has been dissolved or has ceased to perform
PROFESSIONAL SERVICES prior to the Effective Date of this Policy as shown in the Declarations,
and in which the NAMED INSURED acquired more than fifty percent (50%) of that firm’s remaining
assets.
T.
PROFESSIONAL SERVICES means those services performed for others in the practice of
landscape architecture, including:
EC
S.
The performance of studies, surveys,
inspections, observations, or training;
assessments,
evaluations,
consultations,
2.
The preparation of reports, opinions, recommendations, permit applications, maps,
drawings, designs, models, Building Information Modeling, specifications, (including the
use of 3-D printing or other computer-assisted design technology to prepare such maps,
drawings, designs and specifications), manuals, instructions, computer programs for
designated systems, or change orders;
3.
Construction management, quality control, monitoring, testing or sampling necessary to
perform any of the services listed above; or
4.
Pro-bono services provided to others but only with the knowledge and prior consent of the
NAMED INSURED.
SP
1.
PROFESSIONAL SERVICES does not include actual construction activities. This Policy excludes
CLAIMS which arise from actual construction activities performed by you, your agent or your
subcontractor, including, but not limited to: performing construction, erection, fabrication,
installation, assembly, manufacture, demolition, dredging, remediation; or assuming the duties or
responsibilities for construction means, methods, techniques, sequences or procedures; or
supplying any materials, parts or equipment. This does not include the supply of furnishings as a
part of interior design services.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 6 of 17
V.
WRONGFUL ACT means a negligent act, error, or omission in the performance of
PROFESSIONAL SERVICES by an INSURED or any person or entity for whom the INSURED is
legally liable. A WRONGFUL ACT cannot arise from a dishonest, fraudulent, malicious, or criminal
conduct committed by the INSURED or at the INSURED’s direction or with the INSURED’s prior
knowledge. However, WRONGFUL ACT includes PERSONAL INJURY arising out of the
performance of PROFESSIONAL SERVICES.
W.
ANNIVERSARY DATE means the date upon which continuous coverage commenced under this or
an equivalent architects and engineers errors and omissions policy between the NAMED INSURED
and the Company.
X.
CRISIS EVENT means any WRONGFUL ACT that the NAMED INSURED reasonably believes will
have a material adverse effect upon the NAMED INSURED’S professional reputation.
Y.
CRISIS EVENT EXPENSES means reasonable fees, costs, and expenses paid by the NAMED
INSURED with the Company’s prior written approval for consulting services provided by a public
relations firm to the NAMED INSURED in response to a CRISIS EVENT.
AN
UNAUTHORIZED ACCESS means the use of or access to a NETWORK by a person unauthorized
by the INSURED to do so, or the authorized use of or access to a NETWORK in a manner not
authorized by the INSURED.
IM
IV.
U.
TERRITORY
The Policy applies to CLAIMS arising from PROFESSIONAL SERVICES or NETWORK SECURITY
COMPROMISE rendered worldwide, subject to the following condition:
V.
EC
For CLAIMS to which this Policy applies in a venue other than in Canada, the United States of
America including its territories and possessions or Puerto Rico, the Company has the right, but not
the duty, to investigate and defend such CLAIMS, as the Company deems proper and settle as the
INSURED and the Company agree in writing. If the Company elects not to investigate or defend
such CLAIMS, the INSURED will investigate and defend as may be reasonably necessary and
settle as the INSURED and the Company agrees in writing. The Company will reimburse the
INSURED for the reasonable costs of investigation and defence as they are incurred and for the
amount of any judgment or authorized settlement.
EXCLUSIONS
A.
This Policy does not apply to:
Intentional Damages and Dishonest Acts
any CLAIM based upon or arising out of any dishonest, intentional, fraudulent, malicious,
wilful or knowingly WRONGFUL ACT. Furthermore, such insurance as would otherwise be
afforded under this Policy shall be applicable with respect to each and every INSURED
who did not personally commit or personally participate in committing or personally
acquiesce in or remain passive after they knew or should have known of one or more of
the dishonest, intentional, fraudulent or malicious or knowingly WRONGFUL ACTS, errors,
or omissions described above.
SP
1.
This exclusion shall not apply to CLAIMS based upon or arising from the INSURED’s
unintentional breach of a written agreement to refrain from disclosing confidential or
proprietary information during the performance of covered PROFESSIONAL SERVICES.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 7 of 17
2.
Ownership Interest
any CLAIM against an INSURED by:
a.
an entity in which that INSURED maintains a cumulative ownership interest of fifty
percent (50%) or more; or
b.
an entity that maintains any ownership interest in that INSURED; or
c.
an entity that is owned by the parent company of both that INSURED and that
entity.
AN
This exclusion does not apply to any CLAIM(S) made by such entities against the
INSURED based solely on that entity’s vicarious or imputed liability resulting from the
INSURED’s performance of PROFESSIONAL SERVICES, or from a NETWORK
SECURITY COMPROMISE committed or alleged to have been committed by the
INSURED.
INSURED versus INSURED
any CLAIM made by any INSURED against any other INSURED.
4.
Contractual Liability
any CLAIM based upon or arising as a result of liability assumed by the INSURED under
any CONTRACT or agreement. This exclusion does not apply to liability for DAMAGES
arising from a WRONGFUL ACT, or a NETWORK SECURITY COMPROMISE for which
the INSURED would have been liable for in the absence of such contract or agreement.
IM
3.
CONTRACT means any agreement, whether express or implied, in fact or in law, written or
oral, including, but not limited to, hold harmless and indemnity clauses, certifications or
penalty clauses.
Products Liability
any CLAIM based upon or arising out of the sale or distribution of any product developed
by the INSURED or by others under license or trade name from the INSURED for multiple
sale or mass distribution, including, but not limited to, computer programs and software.
This exclusion does not apply to software designed or modified for an individual client of
the INSURED in connection with the INSURED’s rendering of PROFESSIONAL
SERVICES for that individual client.
6.
Construction
any CLAIM arising out of projects where PROFESSIONAL SERVICES were provided by
an INSURED and the demolition, dredging, assembly, construction, erection, fabrication,
installation or supplying of products or materials was performed in whole or in part or
provided by:
SP
EC
5.
a.
an INSURED; or
b.
a person or entity that wholly or partly owns, operates, manages or otherwise
controls an INSURED, or is wholly or partly owned, operated, managed or
otherwise controlled by an INSURED; or
c.
an entity which is wholly owned by or operated, managed or otherwise controlled
by any present principal, partner, director or officer of an INSURED.
This exclusion does not apply to drilling, excavation, or other sampling or testing
procedures necessary to perform the INSURED’s PROFESSIONAL SERVICES.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 8 of 17
Nuclear Hazard
any CLAIM arising out of:
liability imposed by or arising under any nuclear liability act, law or statute, or any
law amendatory thereof;
b.
bodily injury or property damage with respect to which an INSURED under this
Policy is also INSURED under a contract of nuclear energy liability insurance
(whether the INSURED is unnamed in such contract and whether or not it is legally
enforceable by the INSURED) issued by the Nuclear Insurance Association of
Canada or any other insurer or group or pool of insurers or would be an INSURED
under any such policy but for its termination upon exhaustion of its limit of liability;
c.
bodily injury or property damage resulting directly or indirectly from the NUCLEAR
ENERGY HAZARD arising from:
AN
a.
1.
the ownership, maintenance, operation or use of a NUCLEAR FACILITY
by or on behalf of an INSURED;
2.
the furnishing by an INSURED of services, materials, parts or equipment
in connection with the planning, construction, maintenance, operation or
use of any NUCLEAR FACILITY;
3.
IM
7.
the possession, consumption, use, handling, disposal or transportation of
FISSIONABLE SUBSTANCES, or of other RADIOACTIVE MATERIAL
(except radioactive isotopes, away from a NUCLEAR FACILITY, which
have reached the final stage of fabrication so as to be usable from any
scientific, medical, agricultural, commercial or industrial purpose) used,
distributed, handled or sold by an INSURED.
EC
As used in this Policy:
the term NUCLEAR ENERGY HAZARD means the radioactive, toxic, explosive, or
other hazardous properties of RADIOACTIVE MATERIAL;
e.
the term RADIOACTIVE MATERIAL means uranium, thorium, plutonium,
neptunium, their respective derivatives and compounds, radioactive isotopes of
other elements and any other substances which may be designated by any nuclear
liability act, law or statute, or any law amendatory thereof, as being prescribed
substances capable of releasing atomic energy, or as being requisite for the
production, use or application of atomic energy;
SP
d.
f.
the term NUCLEAR FACILITY means:
1.
any apparatus designed or used to sustain nuclear fission in a selfsupporting chain reaction or to contain a critical mass of plutonium,
thorium and uranium or any one or more of them;
2.
any equipment or device designed or used for: (i) separating the isotopes
of plutonium, thorium and uranium or any one or more of them; (ii)
processing or utilizing spent fuel; or (iii) handling, processing or packaging
waste;
3.
any equipment or device used for the processing, fabricating or alloying of
plutonium, thorium or uranium enriched in the isotope uranium 233 or in
the isotope uranium 235, or any one or more of them if at any time the
total amount of such material in the custody of the INSURED at the
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 9 of 17
premises where such equipment or device is located consists of or
contains more than 25 grams of plutonium or uranium 233 or any
combination thereof, or contains more than 250 grams of uranium 235;
4.
any structure, basin, excavation, premises or place prepared or used for
the structural storage or disposal of waste radioactive material;
and includes the site on which any of the foregoing is located, together with all
operations conducted thereon and all premises used for such operations.
the term FISSIONABLE SUBSTANCE means any prescribed substance that is, or
from which can be obtained, a substance capable of releasing atomic energy by
nuclear fission;
h.
with respect to property, loss of use of such property shall be deemed to be
property damage.
AN
g.
Employer Liability
any CLAIM that is related to the INSURED’s employment obligations, decisions, practices
or policies as an employer, including but not limited to, any CLAIM based upon or arising
out of actual or alleged unlawful discrimination by the INSURED against the INSURED’s
personnel or employment applicants.
9.
Asbestos Liability
any CLAIM arising out of an INSURED’s specification of any asbestos material or product,
in any form.
IM
8.
This exclusion does not apply to the investigation, removal or abatement of Asbestos.
Property Liability
any CLAIM based upon or arising out of the INSURED’s ownership, rental, lease,
maintenance, operation, use, repair, voluntary or involuntary sale, transfer, exchange, gift,
abandonment or condemnation of any real or personal property. Personal property,
includes, but is not limited to, automobiles, aircraft, unmanned aerial vehicles (UAV),
unmanned aircraft, drones, watercraft and other kinds of conveyances.
EC
10.
This exclusion does not apply to data collected or otherwise covered work product derived
from the assistance of such vehicles by the INSURED, provided it is in conjunction with
PROFESSIONAL SERVICES.
Real Estate/Financing
any CLAIM based upon or arising out of providing, procuring, or maintaining real estate or
financing or the failure to provide, procure, or maintain real estate or financing.
SP
11.
12.
Insurance and Suretyship
any CLAIM based upon or arising out of the advising or requiring of, or failure to advise or
require or failure to maintain any form of insurance, suretyship or bond, either with respect
to the INSURED or any other person, entity or company.
13.
Express Warranties and Guarantees
any CLAIM based upon or arising out of express warranties and guarantees. However,
this exclusion does not apply to a warranty or guarantee by the INSURED that the
INSURED’s PROFESSIONAL SERVICES are in conformity with the standard of care
applicable to that PROFESSIONAL SERVICE.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 10 of 17
14.
VI.
The coverage afforded under Coverage B – Network Security Liability does not apply to:
any CLAIM based upon or arising out of, directly or indirectly resulting from, in
consequence of, or in any way involving the failure to install available software product
updates and releases, including security-related software patches, to computers and other
components of a NETWORK.
2.
any CLAIM based upon or arising out of, directly or indirectly resulting from, in
consequence of, or in any way involving any actual or alleged failure or malfunction of
electrical or telecommunications infrastructure or services, power interruptions, surges,
brownouts or blackouts, unless under the INSURED’s operational control.
3.
any CLAIM based upon or arising out of, directly or indirectly resulting from, in
consequence of, or in any way involving the actual or alleged fire, flood, earthquake,
volcanic eruption, explosion, lightning, wind, hail, tidal wave, landslide or other act of God.
4.
any CLAIM based upon or arising out of, directly or indirectly resulting from, in
consequence of, or in any way involving the actual or alleged existence, emission or
discharge of any electromagnetic field, electromagnetic radiation or electromagnetism that
actually or allegedly affects the health, safety or condition of any person or the
environment, or that affects the value, marketability, condition or use of any real or
personal property.
IM
AN
1.
EC
B.
Sanctions
The Company shall not be deemed to provide cover and shall not be liable to pay any
CLAIM or provide any benefit hereunder, to the extent that the provision of such cover,
payment of such CLAIM or provision of such benefit would conflict with or expose the
Company to any sanction, prohibition, restriction or penalty under United Nations
resolutions or the trade or economic sanctions, laws or regulations of Canada, the
European Union, United Kingdom or United States of America.
OPTIONAL EXTENDED REPORTING PERIOD
A.
In the event of non-renewal or cancellation of this insurance for any reason by the INSURED, or if
the Company should cancel this Policy or terminate it by refusing to renew, for reasons other than
the INSURED’s non-payment of Premium and/or Deductible amount and/or non-compliance with
the terms and conditions of this Policy, the INSURED:
SP
May purchase an Optional Extended Reporting Period of up to three (3) years. The minimum
premium for this Optional Extended Reporting Period will be one hundred percent (100%) of the
expiring annual premium for a one (1) year period, one hundred fifty percent (150%) of the expiring
annual premium for a two (2) year period, and one hundred eighty-five percent (185%) of the
expiring annual premium for a three (3) year period.
The quotation of a different premium or deductible amount or limit of liability or differing terms and
conditions does not constitute a refusal to renew for the purpose of this provision.
The first NAMED INSURED must request the purchase of the Optional Extended Reporting Period
in writing to the Company prior to the effective date of the non-renewal or cancellation of this Policy
and pay the premium to the Company promptly when due.
If purchased, this extension shall apply to any CLAIM(S) first made against the INSURED and
reported to the Company, in writing, during the Optional Extended Reporting Period.
If, however, this Policy is immediately succeeded by similar claims-made insurance coverage for
which the retroactive date is the same as or earlier than the Retroactive Date shown in Item 6. of
the Declarations, the INSURED shall have no right to an Optional Extended Reporting Period.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 11 of 17
The Optional Extended Reporting Period shall be non-cancellable.
Accordingly, at the
commencement of the Optional Extended Reporting Period, the entire premium shall be
considered fully earned.
B.
The Limit of Liability applicable to the Optional Extended Reporting Period will be the Limit of
Liability remaining under the terminated policy.
C.
The Optional Extended Reporting Period will not apply to:
Any paid CLAIM; or
3.
Any CLAIM that is covered under any subsequent insurance purchased by the INSURED,
or that would otherwise be covered under any subsequent insurance purchased by the
INSURED but for a reduction or exhaustion of the Limits of Liability that would otherwise be
applicable to such CLAIM.
AN
2.
The extension of coverage granted hereunder shall be subject to all the terms and conditions of
this Policy and shall only apply to CLAIMS arising out of the performance of PROFESSIONAL
SERVICES or due to a NETWORK SECURITY COMPROMISE, prior to the cancellation or nonrenewal of this Policy, and that are otherwise covered by this Policy.
LIMITS OF LIABILITY AND DEDUCTIBLE
A.
The Limits of Liability stated in Item 3. of the Declarations, and as described below, are the most
the Company will pay regardless of the number of INSUREDS, CLAIMS, individuals or entities
making CLAIMS.
B.
The Limits of Liability stated in Item 3. of the Declarations will apply as follows:
EC
VII.
Any pending CLAIM or proceedings;
IM
D.
1.
For all CLAIMS except those in venues outside Canada or POLLUTION CLAIMS in all
venues:
a.
the limit for each CLAIM is the most the Company will pay for DAMAGES for any
single covered CLAIM first made and reported to the Company, in writing, during
the POLICY YEAR;
b.
CLAIMS EXPENSES will be paid in addition to the Limits of Liability shown in the
Declarations; and
SP
1.
c.
2.
the limit applies as excess over any Deductible amount.
For all CLAIMS in venues outside Canada, or POLLUTION CLAIMS in all venues:
a.
the limit for each CLAIM is the most the Company will pay for the sum of
DAMAGES and CLAIMS EXPENSES for any single CLAIM first made and
reported to the Company, in writing, during the POLICY YEAR;
b.
CLAIM EXPENSES and DAMAGES will be paid inclusive of the Limits of Liability
shown in the Declarations; and
c.
the limit applies as excess over any Deductible amount.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 12 of 17
C.
The policy aggregate stated in Item 3. of the Declarations applies to the sum of all CLAIMS and is
the most the Company will pay for any combination of DAMAGES paid under section B.1 or
DAMAGES and CLAIMS EXPENSES paid under Section B.2 for all covered CLAIMS first made
and reported during the POLICY YEAR. The limit applies as excess over any Deductible amount.
The POLICY YEAR aggregate Limits of Liability as set forth above may not be aggregated or
transferred, in whole or in part, so as to provide any additional Limits of Liability in respect of
CLAIMS first made or deemed made during any other POLICY YEAR. If the Limits of Liability as
specified above for any POLICY YEAR are exhausted, the Company’s obligation to that POLICY
YEAR shall be deemed completely fulfilled and extinguished.
Multiple/Related CLAIMS: The inclusion herein of more than one INSURED or the making of
CLAIMS by more than one person or the inclusion of additional elements or amounts of DAMAGES
shall not operate to increase the Company’s Limits of Liability. One or more covered CLAIMS
arising out of the same or related WRONGFUL ACTS and/or NETWORK SECURITY
COMPROMISE shall be considered a single CLAIM, and the Limits of Liability stated in Item 3. of
the Declarations as applicable to each CLAIM shall apply and only one Deductible amount shall
apply thereto.
AN
D.
E.
IM
All related CLAIMS shall be considered a single CLAIM made on the date the earliest of the related
CLAIMS was first made. This Policy applies only if the earliest related claim is made against the
INSURED during a POLICY YEAR within the POLICY PERIOD in the Declarations and reported to
the Company during that POLICY YEAR.
Deductible: As stated in Item 4. of the Declarations, the INSURED must pay the Deductible
obligation for DAMAGES, before the Company is obligated to pay. The Deductible applies
separately to each CLAIM whether this insurance is primary or excess.
Furthermore, the Deductible will apply as follows:
The Deductible for each CLAIM is the most the INSURED must pay as a Deductible for the
sum of any DAMAGES arising out of any single CLAIM.
2.
The deductible does not apply to CLAIMS EXPENSES.
3.
The aggregate Deductible, if any, is the most the INSURED must pay as a Deductible for
the sum of all DAMAGES for all CLAIMS made and reported during each POLICY YEAR.
EC
VIII.
1.
DEFENCE, SETTLEMENT AND COOPERATION
With respect to the insurance afforded by this Policy, the Company shall defend any CLAIM against
the INSURED seeking DAMAGES to which this insurance applies, even if any of the allegations
are groundless, false or fraudulent. The Company has the right to designate legal counsel. It is
further agreed that the Company may make such investigation of any CLAIM as it deems
expedient, but the Company shall not be obligated to pay DAMAGES or to defend or to continue to
defend any CLAIM after the applicable limits of the Company’s liability have been exhausted by
payment of DAMAGES.
SP
A.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 13 of 17
The INSURED shall cooperate with the Company and upon the Company’s request shall submit to
examination and interrogation by a representative of the Company, under oath if required, and shall
attend hearings, depositions, examinations for discovery and trials and shall assist in effecting
settlement, securing and giving evidence, obtaining the attendance of witnesses and assist in the
conduct of suits, as well as in investigation and/or defence, all without charge to the Company,
except as otherwise provided in Section II. SUPPLEMENTARY PAYMENTS, Part A. Defendant
Reimbursement. The INSURED shall further cooperate with the Company and do whatever is
necessary to secure and effect any rights of indemnity, contribution or apportionment which the
INSURED may have. For CLAIMS in venues where the Company does not provide a defence, the
INSURED must allow the Company to monitor with the INSURED’s designated legal counsel in the
investigation, defence and resolution of the CLAIM.
AN
B.
The INSURED shall not, except at its own costs, make any payment, admit any liability, settle any
CLAIMS, assume any obligation or incur any expense without the written consent of the Company.
With respect to dispute resolution mechanisms agreed to by the INSURED prior to a CLAIM in
written contracts or agreements, the INSURED shall not assume any obligation thereunder after a
CLAIM without the written consent of the Company. However, assuming such obligations prior to a
CLAIM shall not violate the preceding condition.
The Company shall not settle any CLAIM without the consent of the INSURED. If, however, the
INSURED shall refuse to consent to any settlement recommended by the Company and shall elect
to contest the CLAIM or continue any legal proceedings in connection with such CLAIM, then the
Company’s liability for the CLAIM shall not exceed the amount for which the CLAIM could have
been settled plus CLAIM EXPENSES incurred up to the date of such refusal. Such amounts are
subject to the Limits of Liability and Deductible Section of the Policy.
IM
C.
In the event that the INSURED cannot be located at the last address appearing in this Policy, the
Company may settle the CLAIM without written consent.
A portion of the Deductible that is paid by INSURED for a CLAIM will be reimbursed to the
INSURED if that CLAIM is resolved in one of the following manners:
1.
For a CLAIM that is resolved within one (1) year following the date that the CLAIM was first
made against the INSURED, the INSURED will be reimbursed up to fifty percent (50%),
but not to exceed a maximum reimbursement of $12,500;
2.
For a CLAIM that is resolved through the use of MEDIATION, the INSURED will be
reimbursed up to fifty percent (50%), but not to exceed a maximum reimbursement of
$12,500; or
3.
For a CLAIM that is resolved within one (1) year following the date that the CLAIM was first
made against the INSURED and through the use of MEDIATION, the INSURED will be
reimbursed up to seventy-five percent (75%), but not to exceed a maximum reimbursement
of $25,000.
SP
E.
If any INSURED shall commit fraud in proffering any CLAIM as regards amount or otherwise, the
insurance shall become void as to such INSURED from the date such fraudulent CLAIM is
proffered.
EC
D.
IX.
NOTICE
A.
As a condition precedent to the coverage hereunder, in the event of a CLAIM, immediate written
notice containing particulars sufficient to identify the INSURED and also reasonably obtainable
information with respect to the time, place and circumstances thereof, and the names and
addresses of available witnesses, shall be given by or for the INSURED to the Company.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 14 of 17
B.
As a condition precedent to the coverage hereunder, if a CLAIM is made against the INSURED, the
INSURED shall immediately forward to the Company every demand, notice, summons, order or
other process received by the INSURED or the INSURED’s representative. This requirement
continues throughout the life of the claim.
C.
If the INSURED becomes aware of a CIRCUMSTANCE for which this Policy may apply, and if
during the POLICY PERIOD, the INSURED gives written notice containing details of:
The alleged WRONGFUL ACT or NETWORK SECURITY COMPROMISE;
2.
The specific nature and extent of the injury or damage which has been sustained, and
3.
How the INSURED first became aware of such CIRCUMSTANCE,
AN
1.
then any CLAIM that may subsequently be made against the INSURED arising out of such
CIRCUMSTANCE shall be deemed to have been made on the date first written notice of the
CIRCUMSTANCE was received by the Company. This right conferred upon the INSURED in this
Paragraph shall terminate at the end of the POLICY PERIOD and shall not exist during the
Optional Extended Reporting Period.
IM
OTHER CONDITIONS
A.
Application: By acceptance of this Policy, the first NAMED INSURED stated in Item 1. of the
Declarations agrees that the statements in the application and any supplemental materials and
information submitted therewith are complete, then current and truthful representations, that they
shall be deemed material, that this Policy is issued in reliance upon such representations, and that
this Policy embodies all agreements existing between that first NAMED INSURED and the
Company, or any of its agents, relating to this insurance.
B.
Examination, Audit and Inspection: The Company may examine, audit and inspect the
INSURED’s books, records, services and activities at any time during the POLICY PERIOD and up
to three (3) years afterward, as far as they relate to the subject matter of the Policy.
EC
X.
The Company shall have the right to modify, amend or delete any of the terms and conditions of
the Policy including the right to charge additional premium and the right to withdraw, rescind or void
the Policy, if its examination, audit or inspection reveals any material risk, hazard or condition that
was not previously disclosed by the INSURED in the application or supplemental material, or which
deviated from the information disclosed in the application or supplemental material.
Cancellation: This Policy may be cancelled by the first NAMED INSURED by surrender thereof to
the Company or any of its authorized agents or by mailing to the Company written notice stating
when thereafter the cancellation shall be effective. This Policy may only be cancelled by the
Company for the following:
SP
C.
1.
Non-payment of premium; or
2.
Material breach of any conditions; or
3.
Material misrepresentation or concealment of facts,
by mailing to the first NAMED INSURED at the last mailing address known to the COMPANY,
written notice stating when, not less than forty-five (45) days (fifteen (15) days for non-payment of
premium), thereafter, such cancellation shall be effective. The mailing of notice as aforesaid shall
be sufficient proof of notice. The time of surrender or the effective date stated in the notice shall
become the end of the POLICY YEAR. Delivery of such written notice either by the first NAMED
INSURED or by the Company shall be equivalent to mailing.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 15 of 17
If the first NAMED INSURED cancels, earned premium shall be computed in accordance with the
customary short rate table and procedure. If the Company cancels, earned premium shall be
computed pro rata. Premium adjustment may be made either at the time cancellation is effected or
as soon as practicable after cancellation becomes effective, but payment or tender of unearned
premium is not a condition of cancellation.
Action Against Company: No action shall be brought against the Company unless, as a
condition precedent thereto, there shall have been full compliance with all of the terms of this
Policy, nor until the amount of the INSURED’s obligation to pay shall have been finally determined
either by judgment against the INSURED after final judgment has been rendered and any appeal
decided, or by written agreement of the INSURED, the claimant and the Company. No person or
organization shall have any right under this Policy to join the Company as a party to any action
against the INSURED to determine the INSURED’s liability, nor shall the INSURED or the
INSURED’s legal representative join the Company in such action. Bankruptcy or insolvency of the
INSURED or the INSURED’s estate shall not relieve the Company of any of its obligations
hereunder.
E.
Assignment: This Policy shall be void if assigned or transferred without written consent of the
Company.
F.
Subrogation: In the event of any payment under this Policy, the Company shall be subrogated to
all the INSURED’s rights of recovery therefore against any person or organization and the
INSURED shall execute and deliver instruments and papers and do whatever else is necessary to
secure such rights. The INSURED shall do nothing after a CLAIM to prejudice such rights.
However, it is agreed that the Company waives its rights of subrogation under this Policy against
clients of the INSURED as respects CLAIMS arising from PROFESSIONAL SERVICES under the
client’s contract requiring waiver of subrogation, but only to the extent required by written contract.
G.
Changes: Notice to any agent or knowledge possessed by any agent or by any other person
acting on behalf of the Company shall not effect a waiver or a change in any part of this Policy or
stop the Company from asserting any rights under the terms of this Policy; nor shall the terms of
this Policy be waived or changed, except by endorsement issued to form a part of this Policy.
IM
Sole Agent: The first NAMED INSURED stated in Item 1. of the Declarations shall act on behalf of
all INSUREDS for the payment or return of premium, receipt and acceptance of any endorsement
issued to form a part of this Policy, giving and receiving notice of cancellation or non-renewal and
the payment of any deductibles.
Other Insurance: This insurance shall be in excess of the Deductible of this Policy and any other
valid and collectible insurance available to the INSURED whether such other insurance is stated to
be primary, pro rata, contributory, excess, contingent or otherwise, unless such other insurance is
written only as a specific excess insurance over the Limits of Liability provided in this Policy.
SP
I.
EC
H.
AN
D.
However, no coverage shall be provided under this Policy for any CLAIM against an INSURED that
is covered by a specific project insurance policy issued by the Company. When this insurance is
excess, the Company will not defend any CLAIM that any other insurer has a duty to defend. If no
other insurer defends, the Company has the right but not the duty to do so. If the Company
defends, it will be entitled to the INSURED’s rights against all other insurers.
In addition to the foregoing, unless the Company specifically agrees otherwise, when such other
insurance is written solely for a specific project, this Policy shall not attach, and the Company shall
have no obligation to pay until the Limits of Liability of such other insurance have been exhausted,
even if the INSURED’s liability for such DAMAGES and/or CLAIM EXPENSES is not covered in
whole or in part by such other insurance for any reason, including but not limited to an exclusion or
limitation of coverage or the bankruptcy or insolvency of the specific project insurer.
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 16 of 17
J.
Severability: Except with respect to the Limits of Liability and any rights or duties specifically
assigned to the first NAMED INSURED stated in Item 1. of the Declarations such as those rights
and duties in Section X. OTHER CONDITIONS, Part H. Sole Agent, this insurance applies:
1.
As if each NAMED INSURED were the only NAMED INSURED; and
2.
Separately to each INSURED against whom CLAIM is made or suit is brought.
Headings: The descriptions in the headings of this Policy are solely for convenience and form no
part of the Policy terms and conditions.
L.
Currency: All monetary references in this Policy are in Canadian currency.
M.
Governing Law: This contract is governed by the laws of the province shown in Item 1. of the
Declarations.
N.
Terms of Policy Conformed to Governing Law: Any terms of this Policy which are in conflict
with the Governing Law are hereby amended to conform to such Governing Law.
AN
K.
IM
IN WITNESS WHEREOF the Company has caused this Policy to be signed by the Canadian Chief Agent and
countersigned on the Declarations by a duly authorized agent of the Company.
XL SPECIALTY INSURANCE COMPANY
SP
EC
Nick Greggains
Chief Agent for Canada
XLDP-PLPLACAN/EOL (01/17)
© 2016 XL Specialty Insurance Company
All Rights Reserved. May not be copied without permission.
Page 17 of 17