RAPID RISK MANAGEMENT - TERMS & CONDITIONS -INSURERS

Last updated: 13th August 2024

TERMS OF SUPPLY OF RAPID RISK ASSESSMENTS

1 Definitions

1.1 In these Terms:

Acknowledgment: shall have the meaning given to it in clause 2.2;

Assessor: means an employee or contractor appointed by the Supplier to produce a Report;

Broker / Agent: the Policyholder’s insurance broker or agent;

Charges: means the charges payable by the Insurer to the Supplier for the provision of the Services in accordance with clause 4;

Conditions: these terms and conditions as amended from time to time in accordance with clause 12.6 and which apply to the Contract;

Confidential Information: includes, without limitation, business information and all documents, computer records, specifications, technical descriptions, records, drawings, designs and data relating to a Report and/or the provision of the Services;

Contract: means each contract entered into between the Parties for the provision of the Services;

Controller processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation;

Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time including, but not limited to, the General Data Protection Regulation (EU) 2016/679 (or GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); the Privacy and Electronic Communication Regulations 2003 (SI 2003/2426) and any national implementing laws, regulations and secondary legislation (or all equivalent and/or related legislation enacted in the UK in respect of the protection of personal data and privacy at the expiry of the transition period provided for in the Withdrawal Agreement (as given effect in the European Union (Withdrawal Agreement) Act 2020)) (all as amended, updated, extended or re-enacted from time to time);

Disclaimer: means the disclaimer attached to a Report by the Supplier, a copy of which is attached to these Conditions;

Draft Report: means a draft of the Report;

Force Majeure Event: has the meaning given in clause 11.1;

Group Company: means a company which is either a holding company or a subsidiary of a Party, or a subsidiary of that Party's holding company (as those terms are defined in section 1159 of the Companies Act 2006);

Insurer: means the Party to whom the Services are supplied and who pays for the Services;

Intellectual Property Rights: means copyrights, trademarks, domain names, rights in computer software and databases, know-how and any similar rights whether arising in the United Kingdom or elsewhere in the world;

Materials: means documents, drawings, working papers or similar materials and any data or other information;

Parties: means the parties to a Contract being, together, the Insurer and the Supplier and their respective successors in title; and Party means either of them;

Permitted Recipient: means the Policyholder and/or the Broker/Agent;

Policyholder: has the meaning given in clause 2.4.1;

Property or Properties: means the property or properties the subject of the Services, details of which are set out in the Request and confirmed in the Acknowledgement;

Rapid Risk Assessment: means the identification of the top most frequent risks commonly identified for the type of risk or Property which is the subject of the Report together with some common and emerging risks in relation thereto;

Report: means a rapid risk management report consisting of a risk report and, to the extent relevant, a RIR produced by the Supplier as part of the Services using the Template;

Request: means a request from the Insurer (either online through the Supplier website or otherwise in writing) asking the Supplier to provide Services in relation to one or more Properties;

RIR: means a risk improvement report;

Services: means the carrying out by the Supplier of a Rapid Risk Assessment and production of a Report in respect of a Property;

Supplier: means RiskSTOP Surveys Limited a company incorporated in England and Wales with company number 06388904 whose registered office is at 43 Richmond Hill, Bournemouth, England, BH2 6LR;

Template: means the Supplier’s standard template for the production of a Report.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2 Request for Services

2.1 If the Insurer wishes to purchase Services it shall make a Request to the Supplier. The Request constitutes an offer by the Insurer to purchase Services in accordance with these Conditions.

2.2 The Request shall only be deemed accepted when the Supplier issues written acceptance of the Request (Acknowledgement) at which point and on which date the Contract shall come into existence.

2.3 The Insurer is responsible for ensuring that the information set out in the Request is complete and accurate.

2.4 In submitting a Request the Insurer confirms and warrants to the Supplier that:

2.4.1 it has provided a policy of insurance or is considering providing a policy of insurance directly or via a Broker or Agent to either:

(a) the owner of the Property; or

(b) the lawful occupier of the Property; or

referred to herein as a Policyholder.

2.5 In the event a Request covers more than one Property:

2.5.1 the Services will be carried out in respect of each individual Property; and

2.5.2 Charges will be payable for each individual Report.

3 Supply of Services

3.1 The Supplier shall provide the Services for the Insurer subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions, express or implied.

3.2 What the Service involves. The Supplier will generate a Draft Report by inserting the following information known to it:

3.2.1 risk details;

3.2.2 summary of business activities;

3.2.3 building and construction status; and

3.2.4 where relevant, the risk details for the industry, property or risk type

3.3 Insurer Input: Once the Draft Report has been generated the Supplier will send the Draft Report to the Insurer for acceptance and/or requesting specified information. The Insurer will be asked to review the Draft Report and respond to the Supplier - within three (3) business days if the Insurer identifies any contentious issues or believes any amendments are required. If after three (3) business days the Insurer does not notify the Supplier that any amendments to the Draft Report are required, clause 3.4 shall then apply. If as a result of the Insurer’s feedback the Draft Report needs to be amended, the Supplier will amend the Draft Report and re-send to the Insurer for approval and the provisions of this clause 3.3 shall then apply again.

3.4 Policyholder Call: Once the Insurer confirms acceptance of the Draft Report (or after three (3) business days the Supplier is not informed by the Insurer that amendments to the Draft Report are required), the Supplier will issue the Draft Report to the Policyholder (and any Broker / Agent for their records) and arrange a date to telephone the Policyholder to discuss the contents of the Draft Report and to ensure the Policyholder has a clear understanding of the risks presented. As a result of that call, and any information provided by the Policyholder, the Supplier will generate the Report (which will include a RIR if risk improvements are raised) and send it to the Insurer for approval in accordance with the provisions of clause 3.5.

3.5 Issue of Report. Upon issue of the Report the Supplier will request that the Insurer review the Report and confirm its acceptance of it. Such acceptance will be the Insurer’s confirmation that the information contained in the Report is acceptable. The Supplier shall be entitled to assume that the Insurer has accepted the Report if it does not otherwise contact the Supplier within five (5) business days of receipt to object to the content. Once accepted or deemed accepted, the Supplier will send a copy of the Report to the Policyholder and any Broker / Agent.

3.6 Failure to Provide Information. The Supplier may need certain information from the Insurer to enable it to supply the Service, for example, particular information relating to the Property which is the subject of the Service. The Supplier will not be responsible for supplying the Service late or not supplying any part of it if this is caused by the Insurer failing to provide any information needed within a reasonable time of the Supplier requesting it.

3.7 Accuracy of information provided by Insurer. The Insurer will be asked to confirm that all information provided by it to the Supplier is complete and accurate to the best of its knowledge. In providing such information the Insurer acknowledges that the Supplier will rely on that information in order to provide the Services and the Supplier does not accept any liability for any deficiency in the Report in the event such information is not complete and accurate.

3.8 No Insurance Advice. No advice on insurance will be provided by the Supplier and in the event the Supplier receives any questions from the Policyholder, that are not related to the Rapid Risk Assessment, the Supplier shall direct the Policyholder to their Broker / Agent.

3.9 Provision of Materials. The Insurer shall, at its own expense, provide to the Supplier all necessary Materials which the Supplier may reasonably require in order to provide the Services. The Insurer shall retain duplicates of all such Materials and the Supplier shall have no liability for loss of, or damage to, the same.

4 Price and Payment

4.1 The Charges payable for the Services shall be agreed between the Parties prior to the Contract coming into existence.

4.2 The Supplier will invoice the Insurer at the end of each calendar month in respect of the Services provided in that month.

4.3 Payment of the Charges specified in an invoice is due within thirty (30) days of the date of the invoice in full and in cleared funds or in the event the Insurer has a credit account with the Supplier, in accordance with the agreed credit payment terms.

4.4 All amounts payable by the Insurer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) for which the Insurer shall be additionally liable.

4.5 If the Insurer fails to make a payment due to the Supplier under the Contract by the due date, the Insurer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 4.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

4.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5 Delivery

5.1 Delivery of the Report by the Supplier shall be by email. If, for any reason, the Supplier is unable to deliver the Report by email, or if the Insurer requests, delivery of the Report will be by post.

5.2 The Supplier shall not be liable for the loss, misdirection or destruction of the Report after it has been either sent to the email address provided by the Insurer for that purpose or placed in the Royal Mail posting system to the postal address provided by the Insurer for that purpose.

5.3 Any dates quoted for the Assessor carrying out the Services and delivery of the Report are approximate only, and time is not of the essence. The Supplier shall not be liable for any delay in carrying out the Services or delivery of the Report that is caused by a Force Majeure Event or the Insurer's failure to provide the Supplier with adequate information or any other instructions relating to the Property.

6 Risk and Title

6.1 Responsibility for, and ownership of, the Report shall pass to the Insurer on delivery.

6.2 The Intellectual Property Rights in the Services and in the Report shall at all times remain with the Supplier.

7 Confidentiality

7.1 Neither the Report, nor any part or extract from it, may be included in any published document, circular or statement or otherwise by the Insurer without the prior written approval of the Supplier of the form and context in which it may appear.

7.2 Subject to clauses 7.4 and 7.5, each Party shall keep confidential all Confidential Information and not use it except for the purpose of exercising or performing its rights and obligations under the Contract. Each Party may disclose Confidential Information to a Group Company and to its or their respective employees, officers, professional representatives or advisers, sub-contractors and agents, provided that such persons:

7.2.1 need to know it in connection with the exercise or performance of that Party's rights and obligations under these Conditions;

7.2.2 have been informed of the confidential nature of the Confidential Information divulged; and

7.2.3 agree to act in compliance with the confidentiality requirements in these Conditions.

7.3 Neither Party will disclose Confidential Information to any third party or use it except as otherwise permitted in these Conditions.

7.4 Notwithstanding any other provision of these Conditions, it shall not be a breach of these Conditions for either Party to disclose any Confidential Information pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with power to require the disclosure of such information, provided that (to the extent it is permitted to do so) the affected Party gives all reasonable notice of such disclosure to the other Party.

7.5 Notwithstanding any other provision of these Conditions, the Supplier may use the data gathered in the performance of the Services for its own business purposes but may only disclose such data to third parties in aggregated form and in a manner which does not identify a specific property or person.

7.6 This clause 7 shall continue to apply notwithstanding termination of the Contract.

8 Data Protection

8.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.

8.2 In this clause 8, Applicable Law means (a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a Party is subject and/or which is applicable in any jurisdiction that the Services are provided to or in respect of; (b) the common law and laws of equity as applicable to the Parties (or either of them) from time to time; (c) any binding court order, judgment or decree as applicable to the Parties (or either of them) from time to time; or (d) any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over that Party.

8.3 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Insurer is the controller and the Supplier is the processor. Clause 8.7 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

8.4 Without prejudice to the generality of clause 8.1, the Insurer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier and/or lawful collection of the personal data by the Supplier on behalf of the Insurer for the duration and purposes of the Contract.

8.5 Without prejudice to the generality of clause 8.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

8.5.1 process that personal data only on the documented written instructions of the Insurer unless the Supplier is required by Applicable Law to otherwise process that personal data. Where the Supplier is relying on Applicable Law as the basis for processing personal data, the Supplier shall promptly notify the Insurer of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits the Supplier from so notifying the Insurer;

8.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Insurer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

8.5.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

8.5.4 not transfer any personal data outside of the UK or EEA unless the prior written consent of the Insurer has been obtained and the following conditions are fulfilled:

(a) the Insurer or the Supplier has provided appropriate safeguards in relation to the transfer;

(b) the data subject has enforceable rights and effective legal remedies;

8.5.5 assist the Insurer, at the Insurer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

8.5.6 notify the Insurer without undue delay on becoming aware of a personal data breach;

8.5.7 at the written direction of the Insurer, delete or return personal data and copies thereof to the Insurer on termination of the Contract unless required by Applicable Law to store the personal data.

8.6 The Insurer consents to the Supplier appointing third-party processors of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with any third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 8 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Insurer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 8.

8.7 For the purposes of clause 8.3 the data subject is the Policyholder. The Supplier will process the name, address, email address and telephone number of the Policyholder for the purposes of providing the Services. The processing will cease on completion of the Services.

9 Warranties and Liability

9.1 The Supplier warrants to the Insurer that the Services will be provided using reasonable care and skill but shall be subject to the provisos in clause 9.4. All other conditions, warranties and other terms which might have effect between the Parties or be implied or incorporated into these Conditions, whether by statute, common law or otherwise, are hereby excluded.

9.2 The Supplier shall have no liability to the Insurer for any loss, liability, demand, damage, costs, expenses or other claims for compensation arising as a result of:

9.2.1 any Materials supplied by the Insurer;

9.2.2 any instructions supplied by the Insurer which are incomplete, incorrect, inaccurate, illegible, in the wrong form or late; or

9.2.3 any other fault of the Insurer or any person acting on its behalf.

9.3 The Report is produced solely for the purpose of identifying the top most frequent risks commonly identified for the type of Property which is the subject of the Report together with some common and emerging risks in relation thereto. The Report cannot be used for any other purpose (including use in respect of insurance claims and evidencing losses) without the prior written consent of the Supplier.

9.4 Each Report is supplied subject to the following limitations and exclusions:

9.4.1 the Supplier gathers information for the Report from the Policyholder, a number of publicly and non-publicly available sources and its own aggregated proprietary data and uses such information in order to produce the Report. Whilst the Supplier endeavours to ensure that the information is as accurate as possible the Supplier cannot guarantee the accuracy of information supplied by a third party;

9.4.2 the Insurer acknowledges that it is ordering a Report for which information is gathered securely online and that the Services do not include a physical survey or inspection of the Property and that neither the Supplier nor its employees, agents or sub-contractors will visit the Property for the purposes of carrying out the Services;

9.4.3 the Insurer acknowledges that a physical site survey or inspection of the Property is likely to produce more accurate results than the results the Services are able to produce; and

9.4.4 some of the risks identified in the Report may already have been mitigated and in some cases the risks may not be applicable to the Property or the business that is conducted from the Property.

9.5 Nothing in the Contract shall limit either Party's liability in respect of any claims:

9.5.1 for death or personal injury caused by the negligence of that Party and/or the employees, agents and/or sub-contractors of such Party;

9.5.2 resulting from any fraud including fraudulent misrepresentation made by such Party; and

9.5.3 for which liability may not otherwise lawfully be limited or excluded.

9.6 Subject to clause 9.5, in no event shall the Supplier be liable to the Insurer under contract, tort (including but not limited to negligence), breach of statutory duty or otherwise for any indirect or consequential damages including loss of profits, business interruption, loss of sales, loss of turnover and loss of opportunity even if the loss was reasonably foreseeable or either Party has been advised of the possibility of such damages.

9.7 Subject to clauses 9.5 and 9.6, the aggregate liability of the Supplier hereunder (howsoever caused) (including but not limited to any liability for the acts and omissions of the Supplier's employees, consultants, agents or sub-contractors) in respect of any breach of its obligations to the Insurer (whether implied or express) arising under or in connection with the Contract whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise will be limited to five million pounds (£5,000,000).

9.8 The Supplier’s Group Companies and the Assessors shall be entitled to enforce the provisions of this clause 9 as if they were a Party to the Contract.

9.9 This clause 9 shall survive termination of the Contract.

10 Third Parties

10.1 In carrying out its obligations hereunder the Parties acknowledge that the Supplier is acting only for the Insurer and the following shall apply:

10.1.1 the Supplier is not authorised to make any recommendation to, or requirements of, a Policyholder;

10.1.2 the Supplier shall not be required to take instructions in relation to a Report or the Services from anyone other than the Insurer; and

10.1.3 the Report is produced exclusively for the Insurer and notwithstanding the Report may be disclosed to a Permitted Recipient, no-one other than the Insurer shall be entitled to rely upon the content of any such Report. Consequently the Supplier shall not be liable to any third party (whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise and howsoever arising) in respect of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the Report.

10.2 Each Report shall contain a Disclaimer and the Insurer undertakes and agrees that it shall not at any time remove or vary, or permit the removal or variation of, the Disclaimer without the Supplier's prior written consent.

10.3 If at any time the Insurer discloses or provides a copy of the Report or part thereof to any third party:

10.3.1 the Insurer shall not alter or vary the content of the Report or the Disclaimer;

10.3.2 the Insurer shall take all reasonable steps to ensure that no third party shall remove the Disclaimer from any Report; and

10.3.3 the Insurer shall, prior to or at the time of such disclosure notify the relevant third party in writing that the third party is not entitled to rely on the Report.

10.4 Save as otherwise provided in the Contract, the Parties intend that no term of a Contract may be enforced by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

10.5 The Insurer acknowledges that certain risk management information has been obtained from the Policyholder on behalf of the Insurer via a telephone call. Consequently, whilst such information has been obtained in good faith and reproduced in the Report, the Supplier does not give any warranty express or implied as to the accuracy or completeness of such information in the Report.

11 Force Majeure

11.1 Force Majeure Event means any circumstances not within a Party’s reasonable control including, without limitation:

11.1.1 acts of God, flood, drought, earthquake or other natural disaster;

11.1.2 epidemic or pandemic;

11.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

11.1.4 nuclear, chemical or biological contamination or sonic boom;

11.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;

11.1.6 collapse of buildings, fire or interruption or failure of utility service explosion or accident.

11.2 If a Party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

11.3 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 4 weeks, the Party not affected by the Force Majeure Event may terminate the Contract by giving 1 weeks written notice to the Affected Party.

11.4 This clause 11 shall not operate to relieve the Insurer from its obligation to pay the Charges when due.

12 General

12.1 The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties representations and understandings between them, whether written or oral, relating to its subject matter.

12.2 Any notice required or permitted to be given by either Party to the other in accordance with the Contract shall be in writing addressed to the other Party at its registered office or principal place of business or at such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice and shall be delivered by hand or sent by special delivery post.

12.3 No failure or delay by either Party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.4 If any part of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of any other provisions shall not be affected.

12.5 Nothing in the Contract is intended to or shall operate to create a partnership or joint venture of any kind between the Parties.

12.6 No variation of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

12.7 The Insurer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

12.8 The Supplier may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

12.9 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the law of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English courts.

Annex 1

Form of Disclaimer

IMPORTANT NOTICE

This risk management report (Report) is confidential and has been prepared by RiskSTOP Surveys Limited (RiskSTOP) for the benefit of the Client [and its group companies] (together the Client) in relation to a property or site which is the subject of this Report solely for the purpose of providing either risk control advice or information in connection with the binding or writing of insurance or reinsurance where it is also being underwritten by the Client (Permitted Purpose). In addition, this Report (or part thereof) may be disclosed by the Client to the Policyholder or its Broker but neither shall be entitled to rely upon it.

This Report may not be copied or disclosed to any other person in whole or in part or used for any other purpose without the prior written consent of RiskSTOP.

This Report is based in part on written and verbal information provided by the Policyholder and the Client and, although reasonable care has been taken to ensure that such information is accurately reproduced, neither RiskSTOP (or its group companies) gives any warranty express or implied as to the accuracy or completeness of information contained in this Report. RiskSTOP recommends that the Client does not base its underwriting decisions solely in reliance on information contained in this Report and that it must take its own steps to verify such information.

The Client should acknowledge that a physical site survey or inspection of the property may

produce differing results than the result a telephone survey is able to produce.

Save for the warranty that the Report has been prepared using reasonable skill and care, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law. Without prejudice to the foregoing, the maximum aggregate liability of RiskSTOP (and its group companies) and its employees, agents and sub-contractors for any liability and losses of whatever kind and howsoever arising (including negligence), as a result of access to, use of, or reliance upon, any information contained in this Report is limited to £5,000,000 (five million pounds). Neither RiskSTOP nor its group companies nor their respective employees, agents or sub-contractors shall be liable to any person for indirect, consequential or special losses. In no circumstances shall RiskSTOP, its group companies or their respective employees, agents or sub-contractors be liable to any person other than the Client or where the Report has not been used for the Permitted Purpose.

Nothing in this disclaimer will limit or exclude RiskSTOP’s liability to the extent not permitted by law.