Allianz Professional Indemnity Insurance - Real Estate Agents Policy Wording
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Allianz Global Corporate & Specialty – Pacific Allianz Professional Indemnity Insurance Real Estate Agents Policy Wording
Table of Contents GENERAL INFORMATION ..................................................................................................... 5 POLICY W ORDING .............................................................................................................. 8 INSURING CLAUSES ........................................................................................................... 8 C IVIL L IABILITY .............................................................................................................. 8 INQUIRY COSTS ............................................................................................................. 8 INSURING CLAUSE CLARIFICATIONS ..................................................................................... 8 D EFAMATION ................................................................................................................. 8 BREACH OF P RIVACY ...................................................................................................... 8 INTELLECTUAL PROPERTY ............................................................................................... 8 JOINT VENTURES ............................................................................................................ 8 LOSS OF D OCUMENTS ..................................................................................................... 9 MISLEADING OR D ECEPTIVE CONDUCT .............................................................................. 9 VICARIOUS LIABILITY ....................................................................................................... 9 EXT ENSIONS ..................................................................................................................... 9 ADMINISTRATORS AND EXECUTORS .................................................................................. 9 ADVANCEMENT OF D EFENCE COSTS ................................................................................. 9 AUTOMATIC C OVER FOR N EW SUBSIDIARIES ...................................................................... 9 CONTINUOUS C OVER.................................................................................................... 10 COURT ATTENDANCE.................................................................................................... 10 DOMESTIC PARTNERS ................................................................................................... 10 EMERGENCY COSTS A DVANCEMENT ............................................................................... 11 FRANCHISORS’ INDEMNITY ............................................................................................. 11 FRAUD AND D ISHONESTY .............................................................................................. 11 GENERAL INSURANCE D ISTRIBUTOR................................................................................ 11 MITIGATION COSTS ....................................................................................................... 11 NON-R ENEWAL DISCOV ERY P ERIODS .............................................................................. 12 AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 1 Policy reference: POL738AGCS 05/14
PANEL SOLICITORS ...................................................................................................... 12 PUBLIC R ELATIONS EXPENSES ....................................................................................... 12 RUN- OFF AFTER TRANSACTION ...................................................................................... 12 SEVERABILITY AND NON-IMPUTATION .............................................................................. 13 OPTIONAL EXT ENSIONS .................................................................................................... 14 BREACH OF P RIVACY .................................................................................................... 14 EMPLOYMENT P RACTICES L IABILITY ................................................................................ 14 FIDELITY INSURANCE .................................................................................................... 14 OFFICERS’ L IABILITY ..................................................................................................... 15 W ORKPLACE STATUTORY LIABILITY INSURANCE ................................................................ 15 D EFINITIONS ................................................................................................................... 16 EXCLUSIONS ................................................................................................................... 21 ANTICOMPETITIVE CONDUCT .......................................................................................... 21 BODILY INJURY / PROPERTY DAMAGE............................................................................... 21 BUSINESS BROKING ..................................................................................................... 21 COMMINGLING OF F UNDS .............................................................................................. 21 CONDUCT ................................................................................................................... 21 CONFLICT OF INTEREST ................................................................................................ 22 CONTRACTUAL LIABILITY / GUARANTEE OR W ARRANTY ...................................................... 22 EMPLOYER’S INDEMNITY ................................................................................................ 22 EMPLOYMENT PRACTICES LIABILITY ................................................................................. 22 FINANCIAL ADVICE EXCLUSION ....................................................................................... 22 INSOLVENCY ............................................................................................................... 22 INSURED V INSURED ..................................................................................................... 22 OCCUPIER’S LIABILITY ................................................................................................... 23 POLLUTION ................................................................................................................. 23 PROFESSIONAL FEES .................................................................................................... 23 PRIOR CLAIMS / C IRCUMSTANCES ................................................................................... 23 AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 2 Policy reference: POL738AGCS 05/14
R ETROACTIVE DATE...................................................................................................... 23 TRADING DEBTS ........................................................................................................... 23 USA J URISDICTION CLAIMS ........................................................................................... 23 VEHICLES ................................................................................................................... 24 VALUATION S ERVICES ................................................................................................... 24 W AR AND TERRORISM .................................................................................................. 24 FIDELITY EXCLUSIONS ...................................................................................................... 25 COSTS, F EES AND EXPENSES ........................................................................................ 25 D ISCOVERY OUTSIDE THE POLICY PERIOD ....................................................................... 25 INDIRECT D IRECT F INANCIAL LOSS .................................................................................. 25 PROPRIETARY INFORMATION, TRADE S ECRETS AND INTELLECTUAL PROPERTY ...................... 25 SEGREGATION OF D UTIES ............................................................................................. 25 CLAIMS CONDITIONS ........................................................................................................ 26 NOTIFICATIONS ............................................................................................................ 26 MITIGATION ................................................................................................................. 26 COOPERATION............................................................................................................. 26 D EFENCE AND S ETTLEMENT .......................................................................................... 27 ALLOCATION................................................................................................................ 27 D ISPUTES ................................................................................................................... 27 INSURER’S C ONSENT .................................................................................................... 27 R ELATED CLAIMS/I NQUIRIES .......................................................................................... 27 GENERAL PROVISIONS ..................................................................................................... 28 ASSIGNMENT ............................................................................................................... 28 CANCELLATION ............................................................................................................ 28 CHANGE OF CONTROL .................................................................................................. 28 ENTIRE AGREEMENT..................................................................................................... 28 FOREIGN C URRENCY S ETTLEMENTS ............................................................................... 29 GST .......................................................................................................................... 29 AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 3 Policy reference: POL738AGCS 05/14
PLURALS, H EADINGS AND TITLES, INTERPRETATION .......................................................... 29 SCOPE AND GOV ERNING LAW ........................................................................................ 29 SUBROGATION............................................................................................................. 30 TERMINATION OF F IDELITY INSURANCE COVER ................................................................. 30 LIMIT AND R ET ENTION ...................................................................................................... 30 LIMIT OF L IABILITY ........................................................................................................ 30 OTHER INSURANCE / INDEMNIFICATION ............................................................................ 31 R ETENTION ................................................................................................................. 31 POLICY ADMINISTRATION .................................................................................................. 31 AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 4 Policy reference: POL738AGCS 05/14
General Information
W ho does the duty apply to?
The General Information set out below is provided for
your (the Insured’s) information only. It does not form The duty of disclosure applies to You and everyone
part of the insurance contract with you, and is not that is an insured under the Policy. If You provide
part of the policy. Nothing contained in the General information for another insured, it is as if they
Information imposes contractual obligations on you, provided it to Us.
or creates contractual rights. These are contained in W hat happens if the duty of disclosure is not
the policy and any endorsement. c o mplied with?
Your Duty of Disclosure If the duty of disclosure is not complied with We may
cancel the Policy and/or reduce the amount We pay
Before You (the Insured) enter into the Policy with Us if You make a claim. If fraud is involved, We may treat
(the Insurer), the Insurance Contracts Act 1984 the Policy as if it never existed, and pay nothing.
requires You to disclose to Us every matter that you
know or could reasonably be expected to know is Claims Made
relevant to Our decision whether and on what terms
This policy operates on a ‘claims made and notified’
Your application for insurance is acceptable and to
basis. This means that the policy covers you (the
calculate how much premium is required for Your
Insured) for claims made against you and notified to
insurance.
us (the Insurer) during the Period of Insurance.
You have the same duty to disclose those matters to
The policy does not provide cover in relation to Prior
Us before You renew, extend, vary or reinstate the
Claims/Circumstances (as set out in the relevant
Policy.
exclusion) nor in relation to acts, errors, omissions or
The duty applies until the Policy is entered into, or
other conduct which first takes place before the
where relevant, renewed, extended, varied or Retroactive Date of the policy (if such a date is
reinstated (Relevant Time). If anything changes specified).
between the time You provide answers or make
Where you give notice in writing to us of any facts
disclosure and the Relevant Time, You need to tell Us.
that might give rise to a Claim against you as soon as
W hat You do not need to tell Us
reasonably practicable after you become aware of
You do not need to tell Us about any matter that: those facts but before the expiry of the period of
insurance, you may have rights under Section 40(3)
diminishes Our risk;
of the Insurance Contracts Act 1984 to be
is of common knowledge; indemnified in respect of any Claim subsequently
We know or should know as an insurer; or made against you arising from those facts
notwithstanding that the Claim is made after the
We tell You We do not need to know.
expiry of the period of insurance. Any such rights
arise under the legislation only. The terms of the
policy and the effect of the policy is that you are not
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 5
Policy reference: POL738AGCS 05/14covered for Claims made against you after the expiry If you need to confirm any policy transaction or clarify
of the period of insurance unless such Claim is made any of the information contained in this policy
during the Discovery Period or under the Extension document or if you have any other queries, please
for Run-off After Transaction. contact any of our offices or refer to our website at
www.allianz.com.au.
General Insurance Code If this insurance has been issued through an
of Practice insurance intermediary
If your policy has been arranged through our agent,
We (the Insurer) are a signatory to the General
or a broker who is acting under an agency
Insurance Code of Practice. The Code aims to raise
arrangement such as a binder with us, then they are
standards of practice and service in the insurance
acting as our agent and not as your agent. They will
industry. It:
tell you when this is the case.
promotes better communication between
If Your Policy has been arranged by a broker, other
insurers and customers which will lead to better
than a broker acting under such an agency
public understanding of insurance to allow
arrangement with us, then the broker is acting as
customers to make informed choices, and
your agent.
outlines good standards of practice and service
Where this Policy has been arranged through an
to be met by insurers to enhance their
intermediary a commission may be payable by us to
reputation for responding efficiently to their
them for arranging the insurance.
customers’ needs.
Dispute Resolution Privacy Notice
Process At Allianz, we (the Insurer) give priority to protecting
the privacy of your (the Insured’s) personal
information. We do this by handling personal
We (the Insurer) will do everything possible to information in a responsible manner and in
provide a quality service to you (the Insured). accordance with the Privacy Act 1988 (Cth).
However, we recognise that occasionally there may
Ho w We Collect Your Personal Information
be some aspect of our service or a decision we have
made that you wish to query or draw to our attention. We usually collect your personal information from
you or your agents. We may also collect it from our
We have a Complaints and Dispute Resolution
agents and service providers; other insurers and
Procedure which undertakes to provide an answer to
insurance reference bureaus; people who are
your complaint within fifteen (15) working days.
involved in a claim or assist us in investigating or
If you would like to make a complaint or access our processing claims, including third parties claiming
internal dispute resolution service please contact our under your policy, witnesses and medical
nearest office and ask to speak to a dispute resolution practitioners; third parties who may be arranging
specialist. insurance cover for a group that you are a part of; law
Co ntact for assistance or confirmation of cover enforcement, dispute resolution, statutory and
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 6
Policy reference: POL738AGCS 05/14regulatory bodies; marketing lists and industry Disclosure Overseas
databases; and publicly available sources.
Your personal information may be disclosed to other
W hy We Collect Your Personal Information companies in the Allianz Group, business partners,
reinsurers and service providers that may be located
We collect your personal information to enable us to
in Australia or overseas. The countries this
provide our products and services, including to
information may be disclosed to will vary from time
process and settle claims; offer our products and
to time, but may include Canada, Germany, New
services and those of our related companies, brokers,
Zealand, United Kingdom, United States of America
intermediaries and business partners that may
and other countries where the Allianz Group has a
interest you; and conduct market or customer
presence or engages subcontractors. We regularly
research to determine those products or services that
review the security of our systems used for sending
may suit you. You can choose not to receive product
personal information overseas. Any information
or service offerings from us (including product or
disclosed may only be used for the purposes of
service offerings from us on behalf of our brokers,
collection detailed above and system administration.
intermediaries and/or our business partners) or our
related companies by calling the Allianz Direct Ac cess to Your Personal Information and
Marketing Privacy Service Line on 1300 360 529, EST
Co mplaints
8am to 6pm Monday to Friday, or going to our You may ask for access to the personal information
website’s Privacy section at www.allianz.com.au. we hold about you and seek correction by calling
W ho We Disclose Your Personal Information To 1300 360 529 EST 8am–6pm, Monday to Friday. Our
Privacy Policy contains details about how you may
We may disclose your personal information to others
make a complaint about a breach of the privacy
with whom we have business arrangements for the
principles contained in the Privacy Act 1988 (Cth)
purposes listed in the paragraph above or to enable
and how we deal with complaints. Our Privacy Policy
them to offer their products and services to you.
is available at www.allianz.com.au.
These parties may include insurers, intermediaries,
reinsurers, insurance reference bureaus, related Te lephone Call Recording
companies, our advisers, persons involved in claims, We may record incoming and/or outgoing telephone
external claims data collectors and verifiers, parties calls for training or verification purposes. Where we
that we have an insurance scheme in place with have recorded a telephone call, we can provide you
under which you purchased your policy (such as a with a copy at your request, where it is reasonable to
financier or motor vehicle manufacturer and/or do so.
dealer). Disclosure may also be made to government,
law enforcement, dispute resolution, statutory or
regulatory bodies, or as required by law.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 7
Policy reference: POL738AGCS 05/14Policy Wording Except as otherwise provided herein, this policy covers only Claims or Inquiries first made against the Insured and reported in the Policy Period, or Discovery Period if applicable. Subject to the payment of, or agreement to pay, the premium to the Insurer, the Insurer will pay Loss and other amounts to or on behalf of the Insured in accordance with and subject to the terms and conditions of this policy. All terms, exclusions and conditions apply to the Insuring Clauses, Insuring Clause Clarifications and Extensions. Insuring Clauses Civ il L iab ility The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability. Inq uiry Co sts The Insurer shall pay to or on behalf of the Insured all Legal Representation Costs. Cover for Legal Representation Costs shall not exceed AUD$500,000 and shall be part of and not in addition to the Limit of Liability. Insuring Clause Clarifications De famatio n The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for defamation, slander, libel or injurious falsehood. B re ac h o f P riv ac y The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for breach of privacy or duty of confidentiality. Inte lle c tual P ro p e rty The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for breach of intellectual or industrial property or trade secret whether registered or unregistered, including but not limited to trade marks, designs, patents, copyright and analogous rights. Jo int v e nture s The Insurer will pay to or on behalf of the Policyholder all Loss resulting from any Claim for Civil Liability against any joint venture of which the Policyholder forms part, provided that the Policyholder has declared in the Submission all fees/turnover received from any such joint venture. The liability of the Insurer shall be proportionate to the lowest of: (i) the percentage of the share capital of the joint venture owned by the Policyholder; or (ii) the percentage of the voting control of the joint ve nture exercised by the Policyholder. AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 8 Policy reference: POL738AGCS 05/14
This Clause shall provide cover to the Policyholder only. No other participant in such joint venture and no other third party shall have any rights under this policy, and neither shall the Insurer be liable to pay a contribution to any insurer of any other participant in such joint venture. L o ss o f Do c ume nts The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for the unintentional destruction, damage, misplaceme nt, deletion or loss of Documents while in the physical custody or control of the Insured and for which the Insured is legally responsible. For the purposes of this Insuring Clause Clarification, Documents means any documents including computer records and electronic data other than any negotiable instrument. Misle ad ing o r De c e p tiv e Co nd uc t The Insurer shall pay to or on behalf of the Insured all Loss resulting from any Claim for Civil Liability for any actual or alleged misleading or deceptive conduct at law or under the Competition and Consumer Act 2010 (Cth), Trade Practices Act 1974 (Cth), Australian Securities and Investments Commission Act 2001(Cth), Corporations Act 2001 (Cth) or any equivalent provisions in the State Fair Trading Acts, or their respective successor legislation Vic ario us liab ility The definition of Claim includes the provision of Professional Services by any other person on behalf of the Policyholder and for which the Policyholder is, or is alleged to be, legally liable. Extensions Ad ministrato rs and Ex e c uto rs The definition of Insured is extended to include the legal representatives, heirs, assigns or estates of the Policyholder if the Policyholder is a natural person and of an Officer or Employee in the event of their death, incapacity, insolvency or bankruptcy but solely in respect of their personal liability for Loss arising from a Claim for an act, error, omission or other conduct of such Policyholder, Officer or Employee. Ad v anc e me nt o f De fe nc e Co sts The Insurer shall advance Defence Costs covered by this policy promptly after sufficiently detailed invoices for those costs are received by the Insurer. However, any Defence Costs that are actually paid shall be repayable to the Insurer by the Insured in the event and to the exte nt that it is determined under the policy that they were not entitled to a payment of Defence Costs. The Conduct Exclusion will not apply until the conduct is established by final adjudication of a judicial or arbitral tribunal or by a written admission by an Insured. Cover under this Extension shall not exceed the Limit of Liability. Auto matic Co v e r fo r Ne w S ub sid iarie s For the purposes of this Extension, the definition of Subsidiary is extended to mean any entity that for the first time during the Policy Period, the Policyholder either directly or indirectly: (i) controls the composition of the board of directors; (ii) controls more than half of the voting power; or AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 9 Policy reference: POL738AGCS 05/14
(iii) holds more than half of the issued share capital.
Subsidiary shall not include any entity that meets the criteria in (i) – (iii) above for the first time during the
Policy Period where such entity, at the date of its acquisition by the Policyholder:
a) has total annual gross fees or turnover which is more than 20% of the Policyholder’s annual gross fees
or turnover in the 12 months prior to inception of the policy;
b) has incurred any loss of the type covered by this policy with a quantum greater than the Retention
within the past 5 years of operating as the former business;
Should the Policyholder wish for cover to be extended to include entities not automatically covered by the
foregoing, then the Policyholder shall give the Insurer sufficient details to permit the Insurer to assess and
evaluate the potential increase in exposure. The Insurer shall have the right, but not the obligation, to
offer cover for such an entity on such additional terms, conditions, exclusions and additional premium as
the Insurer may require.
Cover provided by this Extension applies only in respect of acts, errors, omissions or other conduct
allegedly committed after the entity meets the criteria in (i) – (iii) above.
Co ntinuo us Co v e r
Cover is provided under this policy for any Claim or Inquiry arising from facts or conduct within the Prior
Claims/Circumstances Exclusion (iii), provided always that:
(i) the Insured did not first know, nor ought reasonably to have first known, before the Continuity Date of
the potential for the Claim or Inquiry to arise from those facts or conduct; and
(ii) cover provided under this Extension shall be subject to the Insurer's discretion to apply the terms,
conditions, exclusions and limitations of the policy under which the relevant fact or conduct could
have been notified or the terms, conditions, exclusions and limitations of this policy, but in no
circumstances shall the cover granted by this Extension be wider than the remaining terms and
conditions of this policy (including the Limit of Liability and Retention); and
(iii) the Insured all agree not to claim under more than one policy issue d by the Insurer; and
(iv) there has been no fraudulent non-disclosure or misrepresentation by the Insured in respect of the
facts or conduct.
Co urt Atte nd anc e
The Insurer shall pay the Policyholder AUD$500 per person for each day that an Officer or Employee is
legally compelled to and does attend court to give evidence in connection with a Claim. The Retention
does not apply to this Extension.
Do me stic P artne rs
The definition of Insured is extended to include any spouse or civil partner of the Policyholder if the
Policyholder is a natural person and of an Officer or Employee for Loss arising from a Claim for an act, error,
omission or other conduct of such Officer or Employee only and in which the spouse or partner had no
involvement and is due solely to the spouse or civil partner’s status as such.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 10
Policy reference: POL738AGCS 05/14Eme rg e nc y Co sts Ad v anc e me nt
If the written consent of the Insurer cannot be reasonably obtained before Defence Costs, Legal
Representation Costs, and Public Relations Expenses are incurred by an Insured, the Insurer agrees to give
retrospective approval for such amounts incurred by the Insured over a period of up to 30 days after
incurring the first of such amounts.
Cover under this Extension shall not exceed 10% of the Limit of Liability and shall be part of and not in
addition to the Limit of Liability.
Notwithstanding the above:
(i) if it is established that there is no entitlement to indemnity under this policy for the specific amounts
advanced under this Extension, the Insured must repay such amounts to the Insurer immediately;
(ii) the Insured must give written notice to the Insurer of the Claim or Inquiry which was the subject of the
emergency as soon as practicable, together with reasons why an emergency existed.
F ranc hiso rs’ Ind e mnity
In the case of the Policyholder operating as a real estate franchisee, any Claim made against the franchisor
for acts, errors, omissions or other conduct of the Insured shall be covered as if made against the
Policyholder.
F raud and Disho ne sty
The Insurer shall pay to or on behalf of the Insured all Loss resulting from a Claim for Damages which, but
for the Conduct Exclusion, would have been covered under this policy, provided that no cover is provided
to any Insured committing or acquiescing in the act or omission that would otherwise h ave resulted in the
Conduct Exclusion applying.
Ge ne ral Insuranc e Distrib uto r
The definition of Professional Services is extended to include the distribution of general insurance products
(in connection with the provision of Professional Services) by the Insured in a capacity other than as an
authorised representative of an Australian Financial Services Licence holder.
However, this Extension shall not cover Loss or payments in respect of any Claim or Inquiry arising out of,
based upon or attributable to:
(i) the failure of any Insured to give written disclosure of any commission, fees or other benefits
received, in connection with the distribution of general insurance products; or
(ii) the Insured providing advice in respect of general insurance products
Mitig atio n c o sts
The Insurer shall indemnify the Policyholder for Claim Prevention Costs and Expenses.
Cover for Claim Prevention Costs and Expenses shall not exceed 10% of the Limit of Liability and shall be part
of and not in addition to the Limit of Liability.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 11
Policy reference: POL738AGCS 05/14No n -Re ne wal Disc o v e ry P e rio d s
If this policy is neither renewed nor replaced with professional indemnity insurance at or after expiry of
the Policy Period, the Insured shall be entitled to a Discovery Period of:
(i) 60 days, granted automatically with no additional premium payable; or
(ii) 12 months, upon payment of an additional premium of 90% of the annual premium in effect
immediately before the expiry of the Policy Period.
The Policyholder must make any request for such a Discovery Period in writing, and pay any applicable
additional premium, within 30 days after the expiry of the Policy Period. A Discovery Period is not
cancellable by the Policyholder and any premium payable for a Discovery Period is non-refundable. No
Discovery Period is available if this policy is cancelled or avoided by the Insurer, or there has been a
Transaction before the expiry of the Policy Period.
For the purposes of this Extension, Discovery Period means the automatic 60 day period, or the optional
period of 12 months from the expiry of the Policy Period during which the Insured may notify Claims made
in that period in respect of acts, errors, omissions or other conduct committed before expiry of the Policy
Period. The automatic 60 day Discovery Period is part of and not in addition to the optional 12 month
period if granted.
P ane l S o lic ito rs
Any Insured is entitled during the Policy Period to free advice of one hour from any one firm listed on the
Allianz Global Corporate & Speciality Professional Indemnity Panel of Solicitors whi ch relates to a matter
which may give rise to coverage under this policy. The Insurer consents to any firm listed on the Allianz
Global Corporate & Speciality Professional Indemnity Panel of Solicitors being retained to act for an
Insured in respect of any Claim covered under the policy.
P ub lic Re latio ns Ex p e nse s
The Insurer shall pay to or on behalf of the Policyholder all Public Relations Expenses.
Cover for Public Relations Expenses shall not exceed AUD$50,000 and shall be part of and not in addition to
the Limit of Liability.
Run -o ff afte r Transac tio n
In the event of a Transaction, then on application by the Policyholder no later than 30 days after the
Transaction is completed or becomes effective , the Insurer will extend cover to apply in respect of Claims
first made against an Insured within a period of 84 calendar months from the expiry date of the Policy
Period but only for Claims that arise from acts, errors, omissions or other conduct occurring prior to the
date of such Transaction. This Extension is only available if the Policyholder accepts the additional terms,
conditions, exclusions or premium as the Insurer may require.
If cover is so extended, the Extension for Automatic Cover for New Subsidiaries, and the Extension for
Non-renewal Discovery Periods are deleted from this policy from the effective date of such Transaction.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 12
Policy reference: POL738AGCS 05/14S e v e rab ility and No n -Imp utatio n
If the Insurer is entitled to avoid this policy from inception or from the time of any variation in cover due to
fraudulent non-disclosure or misrepresentation by the Insured, the Insurer agrees to waive that right and
shall maintain cover for each Insured, subject to all policy terms, to the extent that such Insured was not
involved in or aware of any such conduct. The Insured agree that the Insurer is entitled to reduce its
liability to nil in accordance with Section 28(3) of the Insurance Contracts Acts (Cth) in respect of those
Insured who were involved in or aware of such conduct.
Where there is non-disclosure or misrepresentation which is not fraudulent, the Insurer waives its rights, if
any, under Section 28(3) of the Insurance Contracts Act (Cth).
In determining whether coverage is available, except in respect of the Prior Claims / Circumstances
Exclusion part (iii):
(i) no conduct of, facts known to or knowledge or information possessed by any one Officer or Employee
is to be imputed to any other Officer or Employee; and
(ii) only the conduct of, facts known to and knowledge or information possessed by any past, present or
future chief executive officer, chief financial officer, chief operating officer, managing director,
chairman, company secretary, chief legal officer, chief risk officer or any person who holds an
equivalent position, of the Policyholder or any Subsidiary will be imputed to the Policyholder and the
relevant Subsidiary.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 13
Policy reference: POL738AGCS 05/14Optional extensions
B re ac h o f P riv ac y
The Insurer will pay the reasonable and necessary expenses (“Response Costs”) incurred by the Insured,
with the prior consent of the Insurer, to notify any client, third party or regulator in accordance with the
Insured’s legal or regulatory duties as a result of any actual, alleged or suspected breach of privacy first
discovered and reported during the Period of Insurance, in relation to personal information collected
during the provision of Professional Services, regardless of whether a Claim has been made against the
Insured.
Response Costs shall not include:
(i) Public Relations Expenses;
(ii) wages, overtime, salaries or fees to Officers or Employees;
(iii) cost to comply with any injunctive relief;
Notwithstanding the definition of Loss, the Insurer will also pay fines and penalties arising from an actual,
alleged or suspected breach of privacy under the Privacy Act 1988 (Cth), amendments thereto or similar
legislation for the same purpose that is first discovered and reported during the Period of Insurance.
Cover for Response Costs and fines and penalties arising from a breach of privacy shall not exceed
AUD$100,000 and shall be part of and not in addition to the Limit of Liability.
Emp lo yme nt P rac tic e s L iab ility
Notwithstanding the Employer’s Indemnity and Employment Practices Liability Exclusion, the Insurer will
pay on behalf of any Insured all Loss resulting from any Claim where liability results directly from the
employment or prospective employment of any Employee of the Policyholder.
Cover under this Extension shall not exceed AUD$50,000 and shall be part of and not in addition to the
Limit of Liability.
For the purposes of cover under this Extension only:
(i) Claim need not arise from the provision of Professional Services; and
(ii) The definition of Employee is extended to include a natural person who is a prospective employee
(but not a prospective Officer) who is not necessarily engaged under a contract of employment with
the Policyholder or any Subsidiary.
F id e lity Insuranc e
Notwithstanding the Conduct Exclusion, the Insurer shall indemnify the Policyholder for Direct Financial
Loss in Australia or New Zealand Discovered and notified to the Insurer during the Policy Period resulting
directly from any dishonest, fraudulent or malicious acts of any Employee or Officer, whether committed
alone or in collusion with others.
Cover for Direct Financial Loss under this Extension shall not exceed AUD$50,000 and shall be part of and
not in addition to the Limit of Liability.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 14
Policy reference: POL738AGCS 05/14O ffic e rs’ L iab ility
Cover under this policy is extended to include any:
(i) Claim made against an Officer of the Policyholder or any Subsidiary ; or
(ii) Inquiry where an Officer of the Policyholder or any Subsidiary is identified in writing is required to
attend or produce documents or answer questions;
provided that neither the Policyholder nor the Subsidiary is a public listed company.
For the purposes of this Extension, the definition of Insured is amended to include any Officer of the
Policyholder or any Subsidiary whilst acting in their capacity as such and the definition of Claim is amended
to delete the words 'that arises from the provision of Professional Services by any Insured'.
This Extension shall not cover Loss or payments in respect of any Claim or Inquiry:
(a) for any physical injury, sickness, disease, death nervous shock, emotional distress, mental anguish or
mental injury of any person; or damage to or loss of or destruction of tangible property or loss of use
thereof.
(b) brought by or on behalf of any Major Shareholder against any Officer.
(c) based on, arising out of, related or attributable to the actual or intended private placement or public
offering of any debt or equity.
For the purposes of this Extension:
(i) “Major Shareholder” means any securities holder who has or had direct or indirect control or
ownership of 15% or more of the issued share capital of the Policyholder or any Subsidiary.
(ii) The Continuity Date is the date when this Extension was first pro vided.
Cover under this Extension shall not exceed AUD$5 00,000 and shall be part of and not in addition to the
Limit of Liability.
W o rkp lac e S tatuto ry L iab ility Insuranc e
Notwithstanding the definition of Loss, the Conduct Exclusion, the Employer’s Indemnity Exclusion and the
Employment Practices Liability Exclusion, the Insurer will pay on behalf of any Insured all Defence Costs and
any fines or penalties in connection with any Claim first brought against an Insured for an act, error,
omission or other conduct that gives rise to a notifiable incident under work health and safety legislation
in Australia or New Zealand.
However, this Extension shall not cover Loss or payments in respect of any Claim or Inquiry arising out of,
based upon or attributable to a contravention of Section 31 Work Health and Safety Act 2011 (Cth) or its
equivalent in any State or Territory of Australia or any amendment, consolidation or re -enactment thereof
or any similar law anywhere in Australia or New Zealand.
Cover under this Extension shall not exceed AUD$250,000 and shall be part of and not in addition to the
Limit of Liability.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 15
Policy reference: POL738AGCS 05/14Definitions
Civil Liabilit y means a legally enforceable obligation to a third party.
Claim means the earliest of any:
(i) verbal or written demand for Damages or non-pecuniary relief;
(ii) confirmation in writing of an intention to pursue an action for Damages or non-pecuniary relief;
(iii) the commencement of civil or criminal proceedings;
(iv) any request to suspend or waive any statute of limitation;
to or against an Insured that arises from the provision of Professional Services by any Insured.
A Claim is first made against an Insured when the demand, confirmation or request is received by the
Insured or the proceeding is served on the Insured.
Claim Prevention Costs and Expenses means all reasonable payments incurred by the Insured, following the
notification of a potential Claim to the Insurer during the Policy Period, which payments the Insurer
consents to in writing and which the Insurer determines to be:
(i) directly attributable to; and
(ii) reasonably incurred in;
the prevention of a Claim which, if made, would be covered by this policy.
It does not mean or include:
(a) an Insured’s loss of opportunity, revenue or profits;
(b) overheads, staff remuneration or manageme nt time of any Insured;
(c) Damages, compensation or other payments made, or consideration given, to customers, clients or
potential claimants;
(d) Any amount once a Claim is made;
(e) Any amount incurred before notification to the Insurer of the potential Claim; or
(f) any other amounts which fall within the definition of Loss.
Cont inuit y Dat e means the date referred to as such in the Schedule of this policy.
Damages means any amount that an Insured shall be legally liable to pay to a third party as monetary
compensation in respect of judgments or arbitral awards rendered against such Insured, or settlements
entered into by the Insured with the prior written consent of the Insurer.
Defence Costs means all reasonable legal fees, costs and expenses, including disburseme nts for which an
Insured is legally liable and which are incurred by an Insured after a Claim is made, with the prior written
consent of the Insurer (such consent not to be unreasonably delayed or withheld) , in the investigation,
defence, adjustment, settlement or appeal of any Claim.
Dis c overed or Dis c overy means when an Officer first becomes aware of facts which would cause a
reasonable person to believe that a Direct Financial Loss of the kind covered by this policy has been or is
likely to be incurred, even though the exact amount or detail of the Direct Financial Loss may not then be
known.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 16
Policy reference: POL738AGCS 05/14If the Policyholder is unable to identify an Employee or Officer but proves beyond reasonable doubt that a
Direct Financial Loss must have been caused by a dishonest, fraudulent or malicious act of an Employee or
Officer for which cover would otherwise be granted by this policy, then the Policyholder shall not be
required to specifically identify the Employee or Officer by name.
Direct Financial Loss means direct financial loss suffered by the Policyholder, which is covered under the
Extension for Fidelity Insurance.
Dis c overy Period means that period in the Non-Renewal Discovery Period Extension, as applicable.
Emp loyee means any natural person who is not an Officer and who is, has been or during the Policy Period
becomes expressly engaged under a contract of employment with any Policyholder.
Ext ernal Adminis t rat or means any external trustee, receiver, receiver and manager, liquidator,
administrator, mortgagee in possession or the like or any employees of such person.
Inquiry means
(i) an investigation, examination or inquiry by any professional body of which the Insured is a member,
or external official person or body having legal authority to conduct an investigation, i ncluding a
Royal Commission, into the Professional Services of the Insured and for which:
(a) the notice or process requiring an Insured to attend or to produce documents or answer
questions is first served during the Policy Period; or
(b) an Insured is identified in writing during the Policy Period by such authorised person or body as
a target of the investigation, examination or inquiry; or,
(ii) a raid on, or on-site visit to, any Insured which first takes place during the Policy Period by a regulator,
government body or any other external official person or body having legal authority to conduct an
investigation into the provision of Professional Services by the Insured and which involves the
production, review, copying or confiscation of documents or in terview of any Insured; or
(iii) a public announcement relating to (ii) above made by the authority performing the raid or on -site
visit.
It is not necessary that a Claim is made against the Insured. However, Inquiry does not include:
(a) any of (i), (ii) or (iii) above that relates to an industry event or practice and not specifically to the
conduct of any Insured providing Professional Services; or
(b) routine regulatory supervision, inspection or compliance reviews.
Ins ured means
(i) the Policyholder and any Subsidiary if the Policyholder is incorporated; and
(ii) any Officer but only when acting within the scope of their duties in the performance of Professional
Services (as distinguished from carrying out duties as an Officer of the Policyholder in relation to the
Policyholder’s own affairs); or
(iii) any Employee but only when acting within the scope of their duties in the performance of Professional
Services.
Insured does not mean or include any contractor or any External Administrator or external auditor of the
Policyholder.
Ins urer means Allianz Australia Insurance Limited, AFS Licence No. 234708
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 17
Policy reference: POL738AGCS 05/14Legal Representation Costs means the reasonable legal costs and expenses for which an Insured is legally
liable and which are incurred by that Insured, with the prior consent of the Insurer, not to be unreasonably
withheld, for legal representation in connection with, preparation for, attendance at or compliance with
an Inquiry into the conduct or alleged conduct of any Insured in providing or failing to provide Professional
Services.
Limit of Liabilit y means the amount specified as such in the Schedule.
Los s means the total amount the Insured is legally obligated to pay and shall include:
(i) Damages and awards of claimants’ costs;
(ii) Defence Costs;
(iii) Direct Financial Loss;
(iv) Legal Representation Costs;
(v) Public Relations Expenses;
(vi) Claim Prevention Costs and Expenses.
Loss shall also include Response Costs, but only as defined and provided under the Breach of Privacy
Extension.
Loss does not include any:
(i) taxes;
(ii) non-compensatory damages, including aggravated, punitive, multiple, exemplary or liquidated
damages (other than damages for defamation, slander, libel or injurious falsehood);
(iii) fines or penalties (except to the extent that cover is provided under the Extensions for Breach of
Privacy and Workplace Statutory Liability Insurance );
(iv) the costs and expenses of complying with any order for, grant of or agreement to provide injunctive
or other non-monetary relief;
(v) benefits or overheads of, or charges or expenses incurred by any Insured including but not limited to
the cost of any Insured’s time;
(vi) fees or commissions for any Professional Services rendered or required to be rendered by the Insured
or that portion of any settlement or award in an amount equal to such fees, charges, costs,
commissions, or other remuneration, compensation or payment charges;
(vii) matters or amounts which, upon allocation according to Claims Conditon for Allocation, are not
covered under this policy;
(viii) any amount which may be deemed uninsurable or where coverage is not legally permitted under
the law governing this policy or the jurisdiction in which a Claim is brought or the jurisdiction in
which the Insured is located; or
(ix) any benefit to the extent that the provision of insurance coverage and/or the provision of such
benefit would expose the Insurer to any breach of applicable sanctions laws.
Offic er means any past, present or future:
(i) partner, principal , director or secretary of the Policyholder or a Subsidiary; or
(ii) person:
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 18
Policy reference: POL738AGCS 05/14(a) who makes, or participates in making, decisions that affect the whole, or a substantial part, of
the business of the Policyholder or a Subsidiary; or
(b) who has the capacity to affect significantly the Policyholder’s or a Subsidiary's financial
standing; or
(c) in accordance with whose instructions or wishes the directors of the Policyholder or a
Subsidiary are accustomed to act (excluding advice given by the person in the proper
performance of functions attaching to the person’s professional capacity or their business
relationship with the directors or the Policyholder or a Subsidiary ).
but only for acts, errors, omissions or other conduct committed, or Inquiries involving conduct committed,
while acting in such capacity.
Polic y Period means the period of time specified as such in the Schedule.
Polic yholder means the organisation or natural person(s) specified in the Schedule.
Pollutants means any substance, solid, liquid, gaseous, biological, radiological or thermal irritant, toxic or
hazardous substance, or contaminant, including but not limited to, asbestos, asbestos products, mycota
or by-products, lead, or lead containing products, smoke, vapours, dust, fibres, mould, spores, fungi,
germs, soot, fumes, acids, alkalis, chemicals, air emissions, odour, waste water, oil, oil products, medical
waste and waste materials. Waste materials include but are not limited to recycled, reconditioned or
reclaimed materials including nuclear materials.
Premium means the amount specified as such in the Schedule.
Professional Servic es means the professional services that the Insured is licensed to provide (whether
acting under an agency agreement with either a vendor or purchaser) under the laws a nd regulations of
the Commonwealth of Australia or of an Australian State or Territory, in the following capacities:
(i) real estate agents;
(ii) property managers;
(iii) body corporate or strata managing agents;
(iv) community managing agents;
(v) land and livestock auctioneers; or
(vi) stock and station agents.
Public Relations Expenses means all reasonable payments incurred by the Insured with the prior written
consent of the Insurer (such consent not to be unreasonably delayed or withheld) for public relations,
crisis management or legal services reasonably required to prevent or minimise adverse or negative
publicity associated with a Claim first made, or Inquiry, during the Policy Period.
It does not mean or include:
(i) Response Costs as defined under the Extension for Breach of Privacy;
(ii) overheads, staff remuneration or management time of any Insured;
(iii) compensation or other payments made to customers, clients or potential claimants;
(iv) fines or penalties; or
(v) the costs and expenses of complying with any order for, grant of or agreement to provide injunctive
or other non-monetary relief.
Related Claim and/or Inquiry means any Claims or Inquiries arising out of, based upon or attributable to:
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 19
Policy reference: POL738AGCS 05/14(i) the same facts;
(ii) the same alleged facts;
(iii) the same circumstances;
(iv) the same act, error, omission or other conduct; or
(v) any continuous or related acts, errors, omissions or other conduct.
Relat ed Direc t Financ ial Los s means
(i) all Direct Financial Loss attributable to any single act, omission or event or to a series of related or
continuous acts, omissions or events. Acts or omissions of one natural personal alone or in collusion
with others shall always be deemed to be related or continuous; or
(ii) if no natural person is identifiable, each and every Direct Financial Loss or series of related Direct
Financial Losses attributable to the same event or series of related events.
Ret ent ion means the amount specified as such in the Schedule. The Retention applies to all Loss.
Submission means each and every signed proposal form, the statements, and representations therein, its
attachments and all other material information submitted to the Insurer in respect of this policy.
Subs idiary means any entity at the commencement of the Policy Period that the Policyholder either directly
or indirectly:
(i) controls the composition of the board of directors;
(ii) controls more than half of the voting power; or
(iii) holds more than half of the issued share capital.
For any Subsidiary, cover under this policy shall only apply to Claims for acts, errors, omissions or other
conduct committed, or Inquiries involving conduct committed, while such entity is a Subsidiary of the
Policyholder.
Terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof,
of any person or group(s) of persons whether acting alone or on behalf of or in connection with any
organisation(s) or government(s), committed for political, religious, ideological or similar purposes
including the intention to influence any government and/or to put the public or any section of t he public
in fear.
Trans ac t ion means
(i) the Policyholder merges with or consolidates into any other entity; or
(ii) the Policyholder sells a majority of its assets to any person or entity or persons or entities acting in
concert; or
(iii) any person or entity or persons or entities acting in concert acquire, directly or indirectly, more than
50% of the issued share capital of the Policyholder;
(iv) any person or entity or persons or entities acting in concert acquire control of the appointment of the
majority of the Policyholder's directors; or
(v) an External Administrator is appointed to the Policyholder.
AGC&S Professional Indemnity Insurance Policy for Real Estate Agents (May 2014) Page 20
Policy reference: POL738AGCS 05/14You can also read
