“PRIORITY”
Professional Indemnity Insurance Contract
Between AC&E PI and Liability Underwriters (Pty) Ltd acting as underwriting managers on behalf
of the New National Assurance Company Ltd and hereafter referred to as the Insurers;
And
The Insured as stated in the Schedule of insurance attached hereto.
A
PREAMBLE
In consideration of, and conditional upon, the payment of the premium by or on behalf of the Insured and
receipt thereof by or on behalf of the Insurer, the Insurer is hereby obliged to insure in accordance with the
Insuring Agreement, General Provisions and Exclusions contained herein or endorsed hereon.
The Insuring Agreement under this policy is in respect of incidents happening within the territorial limits on or
after the retroactive date as stated in the Schedule and which results in a Claim(s) first being made against the
Insured during the policy period.
Costs incurred for any Defence or Investigations will reduce the limit of indemnity available to pay for
settlements or judgments, and will be applied against the Deductible.
B
DEFINITIONS
Words and phrases used in this policy shall in the first instance assume the definition ascribed to it in terms of
the Act. Where no definition is ascribed to a word or phrase in the Act such word or phrase will first assume
the generally accepted insurance definition prior to assuming the ordinary dictionary meaning assigned to it.
In this policy the following words in italics shall have the definitions that follow wherever they appear in this
policy:
1. Act
Financial Advisory and Intermediary Services Act, 37 of 2002.
The following words shall assume the definition ascribed to it under the Act:
1.
2.
3.
Associate(s)
Client
Representative
4. Key Individual
2. Business
the rendering of financial services by the Insured for which it is licensed as a Category I service
provider under the Act.
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3.
Claim
a written demand or civil, regulatory or arbitration proceeding seeking compensation or other legal
remedy for a breach of statutory duty in terms of the Act;
4. Damages
the amount claimed by the Client or any award granted to a Client by any court or any ombud,
whether arrived at through a process of litigation, arbitration or mediation or by way of a settlement
which is made an order of court or of any ombud.
5. Deductible
the amount payable by the Insured in respect of each and every Claim or series of Claims under this
policy prior to the Insurer incurring any liability for such Claim or series of Claims.
Such Deducible shall not form part of the Limit of Indemnity as stated in the Schedule.
6. Defence Costs
(i) reasonable costs and expenses incurred with the Insurer’s prior written consent by or on behalf of
an Insured after a Claim is made, directly in connection with its investigation, defence, settlement or
appeal, but shall not include remuneration of any Insured, cost of their time or costs or overheads.
(ii) reasonable fees, costs and expenses of an accredited expert retained through defence counsel
approved by the Insurer on behalf of an Insured to prepare an evaluation, report, assessment,
diagnosis or rebuttal of evidence in connection with the defence of a covered Claim.
7. Employee(s)
any person currently (or who at the time of the incident or circumstance was) employed under a
contract of employment with the Insured including partners and executive directors employed by the
Insured and are registered with the Financial Services Board as a Representative and/or Key Individual
as per the Act.
8. Insured
policyholder and its Representative and/or Key Individual.
9. Insurers
New National Assurance Company Ltd and its authorised binder holder, AC&E PI and Liability
Underwriting Managers (Pty) Ltd, jointly and severally.
10. Personal Injury
bodily Injury, invasion of the right to privacy, discrimination, libel, slander or defamation of character.
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11. Property Damage
tangible property, rights of light, air, and water and information (including electronically stored
information), intellectual property, or intangible property rights of any kind, or any value therein.
12. Schedule
the document attached to the policy detailing the variable information of the contract of insurance.
C
INSURING AGREEMENT
Professional Indemnity
Damages, which the Insured shall become legally liable to pay to a Client arising out of a negligent breach of
statutory duty in connection with the mandate between the Insured, as performed by a Financial Service
Representative or Key Individual, and its Client in terms of the Act.
D
LIMITS
The maximum that the Insurer shall pay for the total of all Claims and Defence and Investigation Costs is the
Limit of Indemnity (stated in the Schedule) in respect of all Claims arising out of one and the same occurrence
subject to the Deductible payable by the Insured (as stated in the Schedule).
In addition, the maximum payable for the total of all Claims and Defence Costs in any one period of insurance
is the amount stated in the Schedule as the annual aggregate.
E
TERRITORIAL LIMITS
The cover provided under this policy shall operate worldwide, excluding the United States of America, Canada
and the European Union, in respect of the Insured’s Business domiciled in the Republic of South Africa.
F
LAW AND JURISDICTION
Any interpretation of this policy or issue relating to its construction, validity or operation shall be adjudicated
on in terms of the laws of the Republic of South Africa whose courts shall have the exclusive jurisdiction in any
dispute arising hereunder.
G
GENERAL PROVISIONS
1. Misrepresentation, mis-description and non-disclosure
Misrepresentation, mis-description or non-disclosure in any material information shall render
voidable that part of the policy and Claims may not be paid in respect of that part of the policy
affected by such misrepresentation, mis-description or non-disclosure.
2. Contribution
The policy shall not be brought into contribution with any other policy arranged for the same risk.
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3. Claims Notification
The Insured shall not have cover in respect of any Claim unless the Insurers were notified of the
potential Claim in writing and within 30 (thirty) days from the date on which the Insured became
aware of the circumstances that may give rise to a Claim under the policy.
The Insured thereafter is obliged to fully cooperate with every reasonable request by the Insurers to
quantify, mitigate, defend or settle the Claim.
The Insurer shall have the right but is not obliged to defend any Claim brought against the Insured by
any Client.
4. Consent to Regular Risk Assessment
The Insured acknowledges that the nature of the cover afforded under this policy is such that the risk
may vary. The Insured therefore consents to regular reviews being conducted by the Insurer: such
reviews may inter alia include requests by the Insurer for additional information, which if not
provided by the Insured may be indicative of increased exposure.
If in the Insurer’s absolute discretion where increased exposure exists the Insurer may adjust the
premium payable for the cover provided or terminate the cover; by giving the Insured 30 (thirty) days
written notice thereof.
H
EXCLUSIONS
The Insurer shall not be liable to make any payment
1. War Risks
arising out of, based upon or attributable to loss, injury, damage or liability directly or indirectly
caused by, related to, or in consequence of war, invasion, act of foreign enemy, hostilities
(whether war be declared or not), civil war, mutiny, insurrection, rebellion, evolution, military or
usurped power.
2. Nuclear
arising out of, based upon or attributable to loss, damage, cost, expense or liability arising
directly or indirectly out of nuclear reaction, ionising radiation or radioactive contamination of
any kind, irrespective of whether other causes have contributed.
3. Computer Risks
arising out of, based upon or attributable to:
a)
loss or destruction of or damage to any property whatsoever (including a computer) or
any loss or expense whatsoever resulting or arising therefrom;
b) any legal liability of whatsoever nature;
c) any consequential loss;
directly or indirectly caused by or contributed to by or consisting of or arising from the
incapacity or failure of any computer, correctly or at all:
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i)
to treat any date as the correct date or true calendar date, or correctly or
appropriately to recognize, manipulate, in regard to or interpret, process,
store, receive or to respond to any data or information, or to carry out any
command or instruction, in connection with any such date; or
ii)
to capture, save, retain or to process any information or code as a result of
the operation of any command which has been programmed into any
computer, being a command which causes the loss of data or the inability
to capture, save, retain or correctly to process such data in regard to or in
connection with any such date; or
iii)
to capture, save, retain or to process any information or code due to
programme errors, incorrect entry or the inadvertent cancellation or
corruption of data and/or programmes; or
iv)
to capture, save, retain or to process any data as a result of the action of
any computer virus, or other corrupting, harmful or otherwise
unauthorized code or instruction including any Trojan horse, time or logic
bomb or worm or any other destructive or disruptive code, media or
programme or interference.
A computer includes any computer, data processing equipment, microchip, integrated circuit or
similar device in computer or non-computer equipment or any computer software, tools, operating
system or any computer hardware or peripherals and the information or date electronically or
otherwise stored in or on any of the above, whether the property of the Insured or not.
4. Fines and other Damages
arising out of, based upon or attributable to fines, penalties, punitive and exemplary damages.
5. Employees Dishonesty
arising out of, based upon or attributable to an Employee who is dishonest or who conceals or
attempts to conceal any act of dishonesty whether their own or that of any other person in
relation to any circumstance that may give rise to a Claim hereunder.
6. Unauthorised Persons
arising out of, based upon or attributable to the rendering of financial services for which the
Insured, Representative or Key Individual was not appropriately authorised under the Act at the
time when such service was rendered.
7. Under Insurance and Trading Losses
arising out of, based upon or attributable to:
a.
b.
any Claims relating to losses sustained by the Client in consequence of such Client being
underinsured, or
any Claims relating to investment losses as a result of market fluctuations or
investments made in property syndications or similar investments:
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except if the losses are occasioned by a failure of the Insured to implement an instruction
received from a Client.
8. Claims by Associates
arising out of, based upon or attributable to Claims made against the Insured by any of its
Associates.
9. Consent and Admission of Liability
arising out of, based upon or attributable Claims where the Insured made any admission, offer,
promise to pay or other agreement of compromise with a claimant, potential claimant or any
other person without the prior written consent of the Insurers.
10. Prior Claims and Circumstances
arising out of, based upon or attributable to:
(i)
any incident or circumstance known to the insured prior to the retroactive date of
this policy, which may give rise to a Claim under this policy.
(ii)
any Claim which has been reported or any incident or circumstance for which
notice has been given under any other policy of which this policy is a renewal or
replacement or which it may succeed in time; or
(iii)
any litigation or pending litigation instituted prior to the inception of this policy or
any allegation arising or emanating from the same or essentially the same facts as
alleged in such litigation.
For the purposes of this exclusion, the term litigation shall include, but not be limited to, any civil,
administrative or regulatory proceeding or official Investigation, arbitration, mediation or
adjudication.
11. Personal Injury or Property Damage
arising out of, based upon or attributable to Personal Injury or Property Damage .
NOTICES
Notices to be delivered to the Insurers and the Insured in writing for the purposes of this agreement
are as follows:
Insured
The address which appears on the latest schedule of insurance hereto, which address shall include an
e-mail address if so advised by the Insured.
Insurers
th
7 Floor, Bedford Centre Smith Street, Bedford Gardens.
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