TERMS OF BUSINESS AGREEMENT ("TOBA")
1 Six Clerks Insurance Services Limited
1.1 Six Clerks Insurance Services Limited (also referred to as “we”, “us” or “our”) is incorporated and registered in England & Wales with registered number 08517341. Our registered address is 70 Mark Lane, London, EC3R 7NQ.
1.2 We are an appointed representative (FCA No. 602218) of Miller Insurance Services LLP (FCA No. 575243), which is authorised and regulated by the Financial Conduct Authority (FCA) to conduct general insurance activities. This can be verified by checking the Financial Services Register on the FCA’s website or by contacting the FCA by phone on 0300 500 8082. You can find our contact details (including phone number) and find out more about us at www.sixclerks.com
1.3 We act as a managing general agent of an insurer to write, on their behalf, professional indemnity insurance for solicitor law firms. Your insurance will be underwritten by that insurer.
1.4 Six Clerks Insurance Services Limited has a licence to trade under the name Six Clerks.
2 This TOBA and Six Clerks’ limitation of liability
2.1 In addition to the insurance policy that you have with the insurer, you have a separate agreement with us. This TOBA sets out the terms on which we will be acting as administrator of your policy.
2.2 Please contact us immediately if there is anything in this TOBA that you disagree with or do not understand.
2.3 If you instruct us to proceed with the arrangement of your insurances, we will be doing so on these terms alone and they will have contractual effect between you and us.
2.4 From time to time, it may be necessary for us to amend or supersede these terms by new terms which will be communicated to you in writing.
2.5 Six Clerks’ aggregate liability for breach of contract, negligence, breach of statutory duty or other claim arising out of or in connection with this TOBA shall be limited as follows:
2.5.1 in respect of personal injury or death caused by Six Clerks’ negligence, no limit shall apply;
2.5.2 in respect of any matter where liability cannot be excluded by law, no limit shall apply;
2.5.3 in respect of any fraudulent acts (including theft or conversion) or willful default by Six Clerks, no limit shall apply;
2.5.4 in respect of claims other than under (a), (b) and (c) above, the total aggregate liability of Six Clerks shall be limited to the sum of GBP 10 million; and
2.5.5 subject to (a), (b) and (c) above, in respect of the following losses: loss of revenue; loss of opportunity; loss of reputation; loss of profits; loss of anticipated savings; increased costs of doing business; or any other indirect or consequential loss, Six Clerks will have no liability in any circumstances.
2.5.6 Both you and we agree that the foregoing exclusions and limitations are reasonable, based on the level of risk assumed by us in connection with this TOBA.
2.6 Both you and we agree that the foregoing exclusions and limitations are reasonable, based on the level of risk assumed by us in connection with this TOBA.
3 Our service to you
3.1 We only offer professional indemnity insurance policies, all of which are bound under a single binding authority facility, which is delegated to us and underwritten by a single insured.
Under this arrangement, subject to specific parameters, we have been delegated responsibility from the insurer to:
- bind and commit the insurer to the contract of insurance;
- issue insurance certificates;
- hold cover for an agreed period, subject to specific conditions being met;
- extend policy periods for an agreed period;
- agree cancellation of risks.
3.2 We will provide you with information on the professional indemnity insurance policy that we offer you, including the main details of cover and benefits, any unusual restrictions or exclusions, any significant conditions or obligations and the period of cover.
3.3 However, you will not receive advice or a recommendation from us. You will need to make your own choice as to the suitability of the insurance policy we make available to you, and you will be responsible for deciding how you proceed. Six Clerks is not contractually obliged to seek a quote from or place your policy with any particular insurer. We do not offer or provide advice in relation to tax, accounting, regulatory, legal or other specialist matters (including in relation to your obligations where your policy is subject to a law other than that of England and Wales) and you should take separate advice as you consider necessary regarding such matter.
4 Market security
4.1 We make no representations as to the financial solvency of insurers. We do not accept any liability for any unpaid amounts in respect of claims or return premiums due to you from an insurer who becomes insolvent or delays settlement.
5 Evidence of cover and policy documentation
5.1 We will promptly send you evidence of cover in the form of a certificate of qualifying insurance, along with related policy documentation. You should examine those insurance documents very carefully to ensure that they meet your requirements. If the documents do not meet your requirements or if you feel they are incorrect, please advise us immediately. In any event, it is important for you to keep your insurance documents safe.
6 Payment of premium and premium funding
6.1 Payment by you of the advised insurance premium is a pre-condition to insurance cover. Insurance premiums are to be paid in British Pound Sterling only.
6.2 You may wish to seek the services of a finance provider to assist you with the payment of premium. In the event that you wish to utilise the services of a finance provider that is referenced on our website (you have no obligation whatsoever to do so and we make no recommendation of their services), you acknowledge that such relationship is strictly between the finance provider and you in relation to any premium funding.
6.3 In providing us with your e-mail address, we will consider this to be your consent to receiving any (re)insurance documentation that we may, or are required to, provide to you in an e-mail, or e-mail format. If you would like to receive any of the documentation in paper format, please let us know.
7 Insurance monies
7.1 We hold money received from you, or to pay to you, as agent of the insurer under the single binding authority facility which specifies that premiums (including return premiums) and claims monies received by us are held as agent for that insurer.
8.1 It is very important that you familiarise yourself with all the terms of any insurance contract that you purchase. In particular, you must treat any warranties seriously and comply strictly with them. Failure to do so may entitle the insurers to decline a claim under the insurance contract. If you are aware that you are in breach of a warranty, you should keep a record of when the breach occurred and when the breach was remedied. You should always remedy a breach as quickly as possible. If the breach is not capable of remedy, you should tell us as soon as possible. If you have any doubts or reservations, you should tell us.
9 Disclosure to Insurers
9.1 As a non-consumer (that is, you are not an individual who is entering into an insurance contract wholly or mainly for purposes unrelated to your trade, business or profession) you must make a fair presentation of the risk to the insurer. That means you must disclose to the insurer every material circumstance (that is,
information that would influence the judgement of a prudent insurer in establishing the premium or determining whether to underwrite the risk and/or on what terms it will underwrite the risk) that you know or ought to know.
9.1.1 Examples of things which may be material circumstances are:
a) special or unusual facts relating to the risk;
b) any particular concerns that led you to seek insurance cover for the risk; and
c) anything that those concerned with the class of insurance and field of activity in question would generally understand as being something that should be dealt with in a fair presentation of risks of the type in question.
9.1.2 If there is any doubt as to whether information is material, it should be disclosed.
9.1.3 If you inadvertently do not disclose every circumstance, you must give the insurer sufficient information to put a prudent insurer on notice that it needs to make further enquiries in order to reveal material circumstances and to make the disclosure in 9.1.1 in a reasonably clear and accessible way. A fair presentation need not be contained in only one document or oral presentation, but will need to be structured, indexed and signposted, as appropriate, so that your insurer can assess whether the information you have provided is sufficient for their purposes or whether they need to make further enquiries of you, via us; and
9.1.4 Ensure that every material representation as to a matter of fact is substantially correct, and that every material representation as to a matter of expectation or belief is made in good faith.
9.1.5 For the purposes of clause 9.1 above, you are expected to know or ought to know the following:
a) if you are an individual, what is known to you and anybody responsible for arranging your insurance;
b) if you are not an individual, what is known to anybody who is part of your senior management (meaning those individuals who play significant roles in the making of decisions about how the insured’s activities are to be managed or organised) or anybody who is responsible for arranging your insurance (this includes anyone who participates on behalf of the insured in the process of procuring the insured’s insurance both inside and outside of the insured entity (whether the individual does so as the insured’s employee or agent, as an employee of the insured’s agent or in any other capacity));
c) whether you are an individual or not, what should reasonably have been revealed by a reasonable search of information available to you.
9.2 You cannot turn a blind eye or deliberately withhold information (this may amount to a breach of the duty of fair presentation even if the insurer had sufficient information to ask questions and did not do so). The information may be held within your organisation, or by any third party (including but not limited to subsidiaries, affiliates, your insurance broker (including us), or any other person who will be covered under the insurance). If you are insuring subsidiaries, affiliates or other parties, the insurer will expect you to have included them in your enquiries and that you will inform the insurer if you have not done so. The reasonable search can be conducted by making enquiries or by any other means. We recommend that you document what searches have been undertaken and by whom to ensure that you are able to demonstrate the parameters of your search.
9.3 If you fail to comply with the duty of fair presentation, it could result in your insurance contract being rendered void (so that there would be no cover and your claims would not be paid), the terms of your insurance contract being amended, or insurers reducing any claim that is paid in proportion to the increased premium that would have been charged had the true position been known. The insurer may also have the right to recover claim payments or part of claim payments already made.
9.4 You acknowledge and agree that we will not be required to provide you or the insurer with any information that we have received from anyone that is not directly in connection with the particular contract of insurance we are placing for you. For the avoidance of doubt this includes where we, or Miller Insurance Services LLP, place other insurances for you.
9.5 You agree that we shall provide our services in reliance on the information and data provided by you. You should take care to complete claims and proposal forms or questionnaires required by the insurer fully and accurately and in accordance with your duty to make a fair presentation of the risk if you are a non-consumer. If you become aware that relevant information that you have supplied before the contract of insurance is finalised was incorrect or has been omitted, you should tell us immediately.
9.6 Your duty not to make a misrepresentation or your duty to make a fair presentation, as outlined above, will arise:
9.6.1 Before the insurance contract is entered into: If you become aware that information that you have supplied prior to confirmation of your insurance cover was incorrect or incomplete, you should tell us immediately; and
9.6.2 After the insurance contract is entered into: The duty to make a fair presentation for non- consumer insureds is re-imposed when there are changes or variations in cover, when the insurance contract is renewed or extended and when making a claim in respect of the subject matter of that claim. If you are aware of any changes in respect of your insurance, you should advise us immediately so that we can advise your insurers.
10 Your liability for tax
10.1 It is your obligation to account for tax on all insurance transactions.
11.1 Should you ask us to place a quoted policy on your behalf, we will be remunerated as set out below. If you instruct us to place your policy, we will assume that you agree to these remuneration arrangements. The insurer will pay us a commission for placing your insurance under the facility that is delegated to us, which shall be a percentage of your total annual premium. As this remuneration is earned at the time of binding, we are entitled to retain it even if policies arranged by us are cancelled.
11.2 We may receive remuneration from premium finance companies where insurances we place are subject to premium finance arrangements. From time to time, we may introduce the services of other providers who, should you elect to use their services, may agree to pay to us a referral fee.
11.3 We will also be entitled to other remuneration, which will be paid to us by the insurer to which your policy will placed, for specific services provided to them. This does not have an impact on your annual policy premium. The insurers that support the facility arrangement to which your policy will be placed will pay us an annual flat fee and/or additional commission for undertaking administrative and marketing activities associated with the running of that facility.
11.4 You may ask us at any time to disclose the commission we receive for arranging your insurance. We may also apply a fee for creating/issuing policy documents which will be advised to you at the quote stage.
12.1 In the event that we identify a conflict of interest in the arrangements outlined in this TOBA, we will immediately notify you and, where we are able to do so, will agree how to continue.
13.1 You must notify the details of any claims or incidents that could give rise to a claim, in accordance with the claims procedure outlined in your policy documentation. Failure to notify an incident appropriately may give insurers the right to avoid paying your claim.
14.1 Our complaints procedure is available upon request. All complaints should be addressed to:
Head of Compliance
Six Clerks Insurance Services
Limited 70 Mark Lane
London EC3R 7NQ
14.2 In the unlikely event that we are unable to resolve your complaint to your satisfaction, if you are eligible, you may be entitled to refer your complaint for an independent review by the Financial Ombudsman Service (FOS). The FOS is an independent service in the UK for settling disputes between customers and businesses providing financial services. You can register your complaint and/or find more information on the FOS, including eligibility criteria, at www.financial- ombudsman.org.uk or by calling 0800 023 4567.
14.3 If your insurance policy has been underwritten at Lloyd's, and if you are eligible, you may also be entitled to refer your complaint to Lloyd’s for its review.
14.4 If we receive a complaint from you, we will provide you with a copy of our complaint handling procedure, which will provide you details of how we will handle your complaint, as well as details of how to refer your complaint to Lloyd’s and/or the Financial Ombudsman Service. This procedure is also available upon request.
14.5 It may be the case that you are entitled to compensation through the Financial Services Compensation Scheme (FSCS) if we cannot meet our obligations. Further information about the FSCS is available from its website, www.fscs.org.uk.
15 Confidentiality and Data Protection
15.1 We will at all times treat all confidential information we hold about you as private and confidential and protect it in the same way we would protect our own confidential information. We may disclose your personal data in the following circumstances: (a) in the normal course of negotiating, maintaining or renewing your insurance policies; (b) to the extent we are required to do so by law or a regulator; (c) to insurers, surveyors, loss adjustors, IT service providers, administrative support service providers, and other like persons to the extent necessary to provide our Services to you in a timely manner; (d) to loss assessors, lawyers, and other like persons to the extent necessary to enable such third parties to provide information or services you have requested; (e) to premium finance companies to the extent necessary to enable them to provide you with greater choice in making premium payments; and (f) to other group companies to the extent necessary to facilitate the effective management, administration, or operation of those businesses.
15.2 We may: (a) use any information you provide to create anonymised industry or sector-wide statistics which may be shared with third parties, on the condition that unless we have obtained your consent, information specific to you will not be revealed other than on an anonymised basis and as part of an industry or sector-wide comparison; (b) share information concerning your insurance arrangement with insurers where this is necessary to enable insurers to decide whether to participate in any arrangement made by us whereby participating insurers agree to automatically insure (wholly or partly) a portfolio of risks by delegating their authority to bind individual risks within such portfolio to the lead insurer or to us; (c) share anonymised information concerning payment or settlement of your insurance claims with third parties to assist our other clients with payment, negotiation and settlement of their claims with the same or different insurers; and (d) share information about your insurance placements, which may include client names, types of policy, premium and renewal dates, with insurers to enable them to provide and improve their services to you.
15.3 If you wish, we shall be pleased to enter into a specific confidentiality agreement with you.
15.4 The following definitions in respect of data protection and privacy shall apply to this TOBA and any schedules hereunder:
"Data Privacy Laws” means all laws that relate to data protection, privacy, the use of information relating to individuals, and or the information rights of individuals including without limitation: the Regulation; (ii) the UK Data Protection Act 2018, the Privacy and Electronic Communication (EC Directive) Regulations 2003, the Regulation of Investigatory Powers Act 2000, the Telecommunications (lawful Business Practice) (Interception of Communications) Regulations 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Consumer Protection from Unfair Trading Regulations 2008 and any relevant national laws implementing Directives 2002/58/EC, 97/66/EC and 2016/679; (iii) any corresponding or equivalent national laws or regulations; and (iv) any legislation that replaces or converts any of the laws referred to in this definition into domestic law and any amendment, update, modification, or re-enactment of the laws referred to in this definition.
15.5 You and we agree to comply with the Data Privacy Laws applicable in respect of any Personal Data processed under this TOBA. If you provide us with any information which constitutes Personal Data(including any sensitive Personal Data), we will treat such information at all times in accordance with Data Privacy Laws in the manner described within our privacy notice, which can be viewed by clicking here and your reasonable instructions. For Personal Data received from you relating to you or your clients, you agree that we shall both be joint Data Controllers and the provisions of the Data Protection Schedule shall apply.
15.6 It is our policy to only e-mail information to our clients to their business e-mail addresses, and not to personal e-mail accounts. The security of a personal e-mail account is less than that offered by business e-mail addresses, which increases the risk of external unauthorised access and abuse of clients’ personal, sensitive and/or confidential information. If, however, you express to us that you want to communicate with us via a personal e-mail address, or you have initiated contact with us using a personal e-mail address, instead of a business e-mail address, we will communicate with you via your personal e-mail address, on the basis that we have made you aware of the increased security risk and that you will not hold us responsible or liable for any external or unauthorised access to any personal, sensitive and/or confidential information, as a result of using your personal e-mail address.
16 Money laundering
16.1 We are obliged by UK money laundering regulations to undertake customer due diligence measures to verify the identity of customers, and to seek further information from you if you request us to make any payments to a third party.
17.1 We will pay due regard to, and you agree to co-operate with us to ensure compliance with, any applicable legislative and regulatory requirements and any international economic, financial or trade sanctions legislation.
17.2 As a consequence, we undertake client due diligence and verification in order to satisfy ourselves and demonstrate that we undertake business with entities that are of good repute and are not subject to any global sanctions regimes. As such, we will ask you to provide to us information about your entity, which enables us to facilitate future payments to you.
17.3 We may also be obliged to verify the accuracy of your bank details, either from an independent senior officer at your firm or a mandate from your bank. This will be undertaken by the due diligence team within our Business Entity Authorisation department.
17.4 We will not be involved in the offering, promising or giving of any financial or other advantage to any person in breach of any law against bribery (including the Bribery Act 2010). We are required to maintain anti-corruption/bribery policies and procedures which seek to prevent corruption/bribery offences and so we may take, or omit to take, any action where reasonably necessary to comply with such policies and procedures.
18.1 You or we may terminate the TOBA immediately by giving to the other notice in writing.
19 Third party rights
19.1 This TOBA is not intended to and it does not confer a benefit or remedy on any third party, whether by virtue of the Contract (Rights of Third Parties) Act 1999 or otherwise. Further, we may rescind or vary this TOBA, in accordance with its terms, as it applies to you, whether in whole or in part without the consent of any third party.
19.2 You agree that should we receive a request for information pursuant to the Third Party (Rights Against Insurers) Act 2010, we will be obliged to respond to that request and provide the requested information even if that information is confidential to you; this includes where you instruct us not to provide the requested information or you fail to respond to any communication between us in respect of the request. You also accept and acknowledge that we are not obliged to confirm that you are a Relevant Person (i.e. you are subject to insolvency proceedings, as more fully defined in the Third Party (Rights Against Insurers) Act 2010) or that you are liable to the third party and that we are obliged to comply with the request regardless.
20 Intellectual property
20.1 We shall retain all title, copyright, patents and other intellectual property rights to all methodologies and documents used in relation to this TOBA and our arrangements with you.
21 Authority to give instructions
21.1 Unless instructed otherwise, we shall assume that all of your partners, employees, directors and officers who give us instructions are authorised to do so and that we may act on oral instructions.
22 Governing law and jurisdiction
22.1 This TOBA, any associated letter/correspondence and our business relationship with you are governed by English law and are subject to the exclusive jurisdiction of the High Court in London.
23.1 If any term of this TOBA, or any part of such term, is or becomes illegal, invalid or unenforceable in any respect, then the remainder of the TOBA will remain valid and enforceable.
24 No Assignment or Waiver
24.1 A failure at any time by either of us to enforce any right or obligation shall not be deemed to be a continuing waiver of such right or obligation. You may not assign your rights or obligations without our prior written consent. We may assign, novate or subcontract any of the services without your prior consent.
25 Entire agreement
25.1 This TOBA constitutes the entire agreement between both you and us with regard to our engagement and supersedes all proposals, prior discussions and representations, oral or written, between both of us.
26 Force majeure
26.1 We shall not be liable to you if we are unable to perform the Services as a result of any cause beyond our reasonable control. In the event of any such occurrence affecting us we shall notify you as soon as reasonably practicable.
27 Your acceptance of these terms
27.1 It is deemed that you consent to arrange your insurance based on the terms of this TOBA if, having received this TOBA, you instruct us and/or continue to do business with us.
Terms of Business Agreement – Data Protection Schedule
1. Where we are both acting as joint Data Controllers the following provisions shall apply:
(a) when processing data on behalf of or for the other party, each party will ensure it does so in accordance with the written instructions of the other party;
(b) each party shall comply with the Data Privacy Laws and shall not by its act or omission cause another party to breach the Data Privacy Laws;
(c) each party shall, having regard to the state of technological development, take all appropriate technical, security, and organisational measures necessary or desirable in relation to the processing of Personal Data and maintain up to date records of processing activities performed which shall include the categories of processing activities performed, information on cross border data transfers and a general description of security measures implemented in respect of processed data;
(d) each party shall, promptly as and when the need arises:
(i) generally co-operate in good faith and with all appropriate due diligence to resolve any issue or dispute arising in respect of the relevant Personal Data;
(ii) assist each other to carry out a privacy impact assessment if required;
(iii) notify each other in the event it becomes aware (and no later than 48 hours after becoming aware) of any breach of the data protection laws;
(e) each party shall in respect of its personnel and subcontractors:
(i) employ only personnel who have committed themselves to confidentiality or are under an obligation of confidentiality; and
(ii) ensure that only personnel authorised by the relevant party to have access to the relevant Personal Data do have access to the relevant Personal Data and that no other personnel shall have access to the relevant Personal Data.
(f) Each party acknowledges that any party may receive notification of a request from a Data Subject in relation to the exercise of the Data Subject's rights in respect of the relevant Personal Data under Data Privacy Laws (“Request”).
(g) Upon receipt by a party of a Request under clause (f), the party to whom the Request was made shall as soon as is practicable and in any event not more than two (2) business days following the Request being made, notify the other party of the Request in writing including an appropriate copy.
(h) Upon notification of a Request under clause (f), each of the parties shall promptly and without delay:
(i) liaise as necessary which each other;
(ii) agree such matters and take such steps as may be necessary (including without limitation the content and timing of the response to the exercise of any rights by Data Subjects);
(iii) in each case in a manner that ensures that the Request is appropriately dealt with in accordance with the relevant Data Controller's obligations under the Data Privacy Laws.
(i) Without prejudice to the foregoing or to any other rights or remedies of the parties in the event of any breach of this clause the defaulting party undertakes to promptly to remedy any breach (or the circumstances giving rise to the breach) without charge and at no additional cost to the other party.
2. Each party shall:
(a) be liable for any breaches of Data Privacy Laws caused by its own act or omission including any losses, fines, penalties, compensation payable to Data Subjects and any other remedial action necessary and additional staff training resulting from its breach of this Agreement or a breach of Data Privacy Laws; and
(b) fully and effectively indemnify and keep indemnified and hold harmless the other party for any losses (including any fines, penalties, compensation payable to data subjects) suffered or incurred by the other parties as a result of a breach of this TOBA or a breach of the Data Privacy Laws by the first party, and agree to pay on demand, any and all losses incurred by or awarded against the other party as a result of any breach of this clause.
3. We will tell you if, in our opinion, your instructions may breach the Data Protection Laws.
4. You agree that we and Miller Insurance Services LLP and its companies may hold and process such information:
(a) in order to provide our services to you;
(b) to facilitate the effective management, development or operation of Miller Insurance Services LLP and its companies; and
(c) in any country – including countries outside the European Economic Area, which may not have comparable Data Privacy Laws.
5. When acting for you in a personal capacity how we will process your data as described in our privacy notice. You can find a copy here.
6. You agree that you will not provide any information which constitutes Personal Data (including any sensitive Personal Data) to us unless you have ensured that you have obtained all necessary consents and provided any required notices (in particular informing Data Subjects that their Personal Data will be anonymised and used for analysis purposes), or that you are otherwise permitted to provide such information to us, so that such information you provide to us can be lawfully used or disclosed in the manner and for the purposes anticipated by this TOBA. You will also ensure that any such information you do provide to us is relevant for such purposes, and is reliable for its intended use, accurate, complete and current.