Product Liability Policy
Coverage Part - Claims Made Form
1. Insuring Agreement
MSIG Insurance (Malaysia) Bhd. (hereinafter called the “Company”) shall pay on behalf of the Insured all sums for which the Insured shall become legally obligated to pay for damages in respect of bodily injury or property damage arising from any Claim first made against the Insured during the Policy Period and reported to the Company during the Policy Period as a result of an Occurrence happening in connection with the Insured’s products. No other obligations or liability to pay sums or perform acts or services is covered.
This insurance does not apply to Occurrences which took place before the Retroactive Date, shown on the Schedule, or which occurs after the Policy Period.
This insurance does not apply to any Claim, facts or circumstances of which the Insured was aware or ought reasonably to have known prior to the Retroactive Date.
The Occurrence must take place in the Policy Territory.
All Claims or series of Claims for damages because of bodily injury or property damage sustained by any one person or organization as a result of any one Occurrence shall be deemed to have been made at the time the first of those Claims is made against the Insured. Furthermore, all Claims or series of Claims arising from the same or related cause including continuous or repeated exposure to the same general conditions shall be deemed to constitute one Claim irrespective of whether Claims are reported during one or more Policy Period and the number of Claims made. All such Claims shall be deemed to have originated at the time the first of those Claims is first made against the Insured.
The Company shall have the right and duty to defend any Suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the Suit are groundless, false or fraudulent, and may make such investigation and settlement of any Claim or Suit as it deems expedient, but the Company shall not be obligated to pay any Claim or judgment or to defend any Suit after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements.
This insurance does not apply to:
(1) bodily injury or property damage expected or intended from the standpoint of the insured
(2) any liability assumed by the Insured under any contract, warranty or agreement requiring (i) the assumption of liability for bodily injury or property damage regardless of fault except to the extent such liability would have been implied by law or (ii) the waiver or limitation of the Insured’s rights of recovery against another party
(3) any obligation of the Insured under labour, workers compensation, disability benefits or unemployment compensation law or any similar
(4) bodily injury to any employee of the Insured arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury
(5) bodily injury or property damage due to war, whether or not declared, or any act or condition incident to War includes civil war, invasion, acts of foreign enemies, insurrection, rebellion or revolution.
(6) property damage to the Insured’s products arising out of such products or any parts of such products
(7) claims for costs of removing, replacing, reinstating or repairing defective or unsuitable products supplied by the Insured or in respect of claim arising from loss of use of such products
(8) claims arising out of product guarantee or products warranty given by or on behalf of the insured
(9) property damage to impaired property or property that has not been physically injured, arising out of;
o a defect, deficiency, inadequacy or dangerous condition in the Insured’s product; or
o a delay or failure by the Insured or anyone acting on his behalf to perform a contract or agreement in accordance with its terms
o the failure of the Insured’s Products to meet the level of performance quality, fitness or durability warranted or represented by the Insured
(10) damages claimed for the withdrawal, recall, inspection, repair, replacement, or loss of the use of the Insured’s products or of any property of which such products form a part, if such products, or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein
(11) bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or Pollutants into or upon land, the atmosphere or any watercourse or body of water
(12) cost or expense arising out of any governmental demand or request that the Insured test for, assess, monitor, clean-up, remove, contain, treat, detoxify, or neutralize any such irritants, contaminants or Pollutants.
(13) any liability of whatsoever nature caused by or arising directly or indirectly out of or in connection with:
o ionising radiation or contamination by radioactivity from any nuclear fuel, weapon, medical isotope, waste or other material whether occurring naturally or otherwise; or
o the radioactive, toxic, explosive or other hazardous properties of nuclear assembly or nuclear component thereof; or
o the storage, transport, assembly, disassembly, maintenance or operation of any nuclear weapon or nuclear component thereof
(14) damages claimed for fines, penalties, punitive damages, exemplary damages, treble damages or other damages resulting from the multiplication of compensation in whatever form assessed
(15) any actual or alleged liability whatsoever for any Claim or Claims in respect of loss or losses directly or indirectly arising of, resulting from or in consequence of, asbestos, in whatever form or quantity.
(16) any liability, loss, damage or expense of whatsoever nature directly or indirectly caused by, resulting from, happening through or in connection with any act of terrorism, regardless of any other cause contributing concurrently or in any other sequence to the loss, damage or expense. For the purpose of this exclusion, terrorism means an act or threat of violence or an act harmful to human life, tangible or intangible property or infrastructure with the intention or effect to influence any government or to put the public or any section of the public in fear
In any action suit or other proceedings where the Company alleges that by reason of this exclusion a loss, damage, cost or expense is not covered by this insurance, the burden of proving that such loss, damage, cost or expense is covered shall be upon the Insured.
In the event any portion of this exclusion is found to be invalid or unenforceable, the remainder shall remain in full force and effect.
(17)bodily injury or property damage arising directly or indirectly out of:
A. Any actual or alleged failure, malfunction or inadequacy of:
(1) Any of the following, whether belonging to any Insured or to others:
*Computer hardware, including micro-processors ;
*Computer application software ;
*Computer operating systems and related software ;
*Microprocessors (computer chips) not part of any computer system ; or
*Any other computerized or electronic equipment or components ; or
(2) Any other products, and any services, data or functions that directly or indirectly use or rely upon, in any manner, any of the items listed in Paragraph A.(1) above;
due to the inability or failure to process, including, but not limited to, calculating, comparing, recording, retrieving, sequencing, reading, storing, manipulating, writing to media, determining, distinguishing, converting, transferring or executing "Date/Time Material".
"Date/Time Material", as used herein, means dates, times or data or information that in any manner includes, depends upon, is contingent upon, is derived from, or incorporates any date or time, irrespective of the manner or medium of storage or recordation.
B. Any advice, consultation, design, evaluation, inspection, installation, maintenance, repair, replacement or supervision provided or done by the Insured or for the Insured to determine, rectify or test for, any potential or actual problems described in Paragraph A. above.
(18) bodily injury and/or property damage caused by or arising directly or indirectly from the Insured's Products which the Insured knew or had reasonable cause to believe would be installed in or used in connection with any aircraft or aircraft parts, other aerial devices and/or watercraft
(19) Claims for the failure of the Insured's products to conform to the national standards or required standards of the country in which they are sold, distributed or exported
(20) Any products introduced in whole or in part which contains any substances or an ingredient and/or quantities of these substances which are in violation of any laws or ordinances known by the Insured to be applicable to any jurisdiction in the territory stated in the Schedule
(21) Any products submitted for approval under the requirements of the governmental agency of any country, even if such country is not in the territory within which the coverage under this Policy applies, if such product is rejected, disapprove or initially recalled by the governmental agency of any one or more countries, and the Insured continues to market such known rejected, disapproved or recalled product in the territory as stated in the Schedule
(22) Bodily Injury or Property Damage caused by or arising from
(a) the rendering of or the failure to render professional advice or service provided by the Insured or any error or omission connected therewith;
(b) any design, plan, specification, formula or pattern provided by the Insured or any error or omission connected therewith.
(23) any USA and/or Canada domiciled risk including branches, subsidiaries, agencies or sales outlets of non USA/Canadian Insured.
(24) any liability arising from electromagnetic field (EMF) or electromagnetic pulse (EMP).
The Company shall not have the duty to defend any Claim or Suit seeking to impose such costs, expenses, or liability for such damages or any other relief excluded herein.
C. Supplementary Payments
The Company shall pay with respect of any Claim or Suit:
(1) All expenses incurred by the Company, all costs taxed against the Insured in any Suit defended by the Company and all interests on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Company's liability thereon;
(2) Premiums on appeal bonds required in any such Suit, and premiums on bonds to release attachments in any such Suit for an amount not in excess of the applicable limit of liability of this policy;
(3) Expenses incurred by the Insured for first aid to others at the time of any accident, for bodily injury to which this policy applies;
(4) Reasonable expenses incurred by the Insured at the Company's request in assisting the Company in the investigation or defense of any Claim or Suit, including actual loss of earnings not to exceed RM100 per day
The Company agrees to pay the claims expenses incurred under the above sections but such payments shall be part of, and not in addition to, the applicable limits of liability of this insurance.
Notwithstanding any other provision to the contrary, in the event of loss arising to which the Company may be liable to contribute, no legal costs shall be incurred on its behalf without its consent being first obtained and if it so consents it shall contribute to the said costs in the proportion that its share of the loss as finally settled bears to the total sum payable.
D. Persons Insured
Each of the following is an Insured under this insurance to the extent set forth below:
(1) If the Named Insured is designated in the Schedule as an individual, the person so designated but only with respect to the conduct of a business of which he is the sole proprietor, and the spouse of the Named Insured with respect to the conduct of such a business;
(2) If the Named Insured is designated in the Schedule as a partnership of joint venture, the partnership or joint venture so designated and any partner or member thereof but only with respect to his liability as such;
(3) If the Named Insured is designated in the Schedule as an organization other than an individual, partnership or joint venture, the organization designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such.
This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the Insured is a partner or member and which is not designated in this policy as a Named Insured.
E. Limit of Liability
Regardless of the number of (A) Insured's under this policy, (B) persons or organization who sustain bodily injury or property damage, or (C) Claims made or Suits brought on account of bodily injury or property damage, the Company's liability is limited as follows:
The limit of liability stated in the Schedule as applicable to "each Occurrence" is the limit of the Company's liability for all damages because of bodily injury or property damage, or both combined, as the result of any one Occurrence.
Subject to the foregoing respecting "each Occurrence" the total liability of the Company for all damages because of all bodily injury and property damage, shall not exceed the limit stated in the Schedule as "aggregate per Policy Period ".
For the purpose of determining the limit of the Company's liability, all bodily injury and/or property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one Occurrence
F. Policy Territory
This insurance applies to bodily injury or property damage caused by an Occurrence which takes place in the Policy Territory as designated in the Schedule
When used in this policy
(1) "Bodily injury" means physical injury, sickness or disease sustained by any person which occurs during the Policy Period, including death at any time resulting therefrom.
(2) "Aircraft" means any vessel, craft or thing made or intended to fly or move in or through the atmosphere or space.
(3) "Watercraft" means any boat designed to be propelled on water by machinery, oars, paddles, or wind action upon a sail.
(4) "Claims expense" means:
(a) Fees charged by an attorney designated by the Company; and
(b) All other fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a Claim, if incurred by the Company or by the Insured with the written consent of the Company
(5) "Impaired property" means tangible property, other than the Insured's product, that cannot be used or is less useful because:
(a) It incorporates the Insured's product that is known or thought to be defective, deficient, inadequate or dangerous; or
The Insured failed to fulfill the terms of a contract or agreement.
whether or not such impaired property can be restored to use by:
i) the repair, replacement, adjustment or removal of the product or the work
ii) the Insured fulfilling the terms of the contract or agreement
(6) "Insured's product" means:
(a) Any goods or products as designated in the Schedule; and
(b) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or product
Notwithstanding the foregoing, "Insured's Product" does not include any products that are still in the physical or legal possession, care or custody of any Insured or are on any premises owned or rented by any Insured.
(7) "Occurrence" means an accident or a series of accidents including continuous or repeated exposure to substantially the same general harmful conditions.
(8) "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
(9) "Property damage" means: Physical injury to or destruction of tangible property which occurs during the Policy Period, including the loss of use thereof at any time resulting there from. All such loss of use shall be deemed to happen at the time of the physical damage that caused it.
(10) "Suit" means a civil proceeding in which damages because of bodily injury or property damage to which this insurance applies are alleged. "Suit" includes an arbitration proceeding alleging such damages to which the Insured must submit or submit with the Company's consent.
(11) "Claim" means any demand made by a third party upon the Insured for damages however conveyed including any writ, statement of claim, application or other legal or arbitral process, or any written or verbal demand for compensation
All premiums for this policy shall be computed in accordance with the Company's rules, rates, rating plans, premiums and minimum premiums applicable to the insurance afforded herein.
(2) Inspection and Audit
The Company shall be permitted but not obligated to inspect the Insured's property and operations at any time. Neither the Company's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the Insured or others, to determine or warrant that such property or operations are safe or healthful, or are in compliance with any law, rule or regulation.
The Company may examine and audit the Insured's books and records at any time during the Policy Period and extensions thereof and within three years after the final termination of this policy, as far as they relate to the subject matter of this insurance.
(3) Insured's Duties in the Event of Occurrence, Claim or Suit
(a) In the event of an Occurrence, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to the Company or any of its authorized agents as soon as practicable.
(b) If a Claim is made or is brought against the Insured, the Insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.
(c) The Insured shall cooperate with the Company and upon the Company's request, assist in making settlements, in the conduct of Suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the Insured because of injury or damage with respect to which insurance is afforded under this policy; and the Insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The Insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident.
(4) Action against Company
No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.
Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the Company as a party to any action against the Insured to determine the Insured's liability, nor shall the Company be impeded by the Insured or his legal representative. Bankruptcy or insolvency of the Insured or of the Insured's estate shall not relieve the Company of any of its obligations hereunder
(a) The Company's obligation to pay damages and Supplementary Payments on behalf of the Insured applies only to the amount of damages in excess of any deductible amounts stated in the Schedule.
(b) The deductible amount stated in the Schedule applies on a "per Occurrence" basis under Bodily injury and/or Property damage Liability Coverage Combined, to all damages because of:
*Property damage; and
*Bodily injury and property damages combined;
as the result of any one Occurrence, regardless of the number of persons or organizations who sustain damages because of that Occurrence.
(c) The terms of this insurance, including those with respect to:
*The Company's right and duty to defend any Suit which is seeking those damages; and
*Insured's duties in the event of an Occurrence, Claim, or Suit; apply irrespective of the application of the deductible amount
(d) The Company may pay any part or all of the deductible amount to effect settlement of any Claim or Suit and, upon notification of the action taken, the Insured shall promptly reimburse the Company for such part of the deductible amount as has been paid by the Company
(6) Other Insurance
The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the Insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the Company's liability under this policy shall not be reduced by the existence of such other insurance.
When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the Company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below:
(a) Contribution by Equal Shares: If all of such other valid and collectible insurance provides for contribution by equal shares, the Company shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid.
(b) Contributions by Limit. If any of such other insurance does not provide for contribution by equal shares, the Company shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss
In the event of any payment under this policy, the Company shall be subrogated to all the Insured's rights of recovery therefore against any person or organization and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing after loss to prejudice such rights.
(8) Misrepresentation, Misdescription or Non-disclosure
This policy shall be voidable in the event of misrepresentation, misdescription or non- disclosure made by the Applicant /Insured or his representative in any material fact in respect of this insurance.
Notice to or knowledge possessed by the Company or its agent shall not effect a waiver or a change in any part of this policy or stop the Company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy.
Assignment of interest under this policy shall not bind the Company until its consent is endorsed hereon; if, however, the Named Insured shall die, such insurance as is afforded by this policy shall apply (1) to the Named Insured's legal representative, as the Named Insured, but only while acting within the scope of his duties as such, and (2) with respect to the property of the Named Insured, to the person having proper temporary custody thereof, as Insured, but only until the appointment and qualification of the legal representative.
This policy may be cancelled by the Named Insured by surrender thereof to the Company or any of its authorized agents or by mailing to the Company written notice stating when thereafter the cancellation shall be effective. This policy may be cancelled by the Company by mailing to the Named Insured at the address shown in this policy, written notice stating when not less than fifteen days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the Policy Period. Delivery of such written notice either by the Named Insured or by the Company shall be equivalent to mailing.
If the Named Insured cancels, earned premium shall be computed in accordance with the customary short rate table and procedure. If the Company cancels, earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.
(12) Forfeiture of Benefit
If any claim upon this policy be in any respect fraudulent or if any fraudulent means or devices be used by the Insured or anyone acting on his behalf to obtain any benefit under this policy or if any loss destruction or damage be occasioned by the willful act or with the connivance of the Insured all benefit under this policy shall be forfeited.
(13) Applicable law
This policy shall be governed by and interpreted in accordance with the law of Malaysia.
Any dispute between the parties arising out of or in connection with this policy including formation and validity shall be submitted to arbitration in Kuala Lumpur, Malaysia in accordance with and subject to The Regional Centre for Arbitration Rules in existence at the time of application.
(15) Premium Warranty
It is a fundamental and absolute special condition of this Contract of Insurance that the premium due must be paid and received by the Company within sixty (60) days from the inception date of this insurance. If this condition is not complied with then this contract is automatically cancelled and the Company shall be entitled to the pro-rata premium for the period they have been on risk. Where the premium payable pursuant to this warranty is received by an authorised agent of the Company, the payment shall be deemed to be received by the Company for the purpose of this warranty and the onus of proving that the premium payable was received by a person, including an insurance agent who not authorised to receive such premium shall lie on the Company.
Notwithstanding anything contained herein to the contrary, it is agreed that the indemnity provided herein shall not apply to:-
*Compensation for damages in respect of judgements not in the first instance delivered by or obtained from a court of competent jurisdiction within the countries as specified in the schedule.
*Costs and expenses of litigation recovered by any claimant from the Insured which are not incurred in and recoverable within the said countries.
The following Exclusion Clauses hereto attached shall form part of the Policy and shall supersede any other similar clause(s) in the Policy which may be inconsistent therewith or, if there are no similar clause(s) in the Policy, then the following shall be considered as additional clauses in the Policy. War & Terrorism Exclusion
The insurance by this policy excludes: death, disability, loss, damage, destruction, any legal liabilities, cost or expense including consequential loss of whatsoever nature, directly or indirectly caused by, resulting from or in connection with any of the following regardless of any other cause or event contributing concurrently or in any other sequence to the loss;
(a) war, invasion, acts of foreign enemies, hostilities or warlike operations(whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or
(b) any act of terrorism including but not limited to
* the use or threat of force, violence and/or
* harm or damage to life or to property (or the threat of such harm or damage) including, but, not limited to, nuclear radiation and/or contamination by chemical and/or biological agents, by any person(s) or group(s) of persons, committed for political, religious, ideological or similar purposes, express or otherwise, and/or to put the public or any section of the public in fear; or
* any action taken in controlling, preventing, suppressing or in any way relating to 1 or 2 above.
If the Company alleges that by reason of this exclusion, any loss, damage, cost or expense is not covered by this insurance the burden of proving the contrary shall be upon the Assured.
Subject otherwise to the Exclusions, Terms and Conditions of the Policy.
Sanction Limitation and Exclusion Clause
No (re)insurer shall be deemed to provide cover and no (re)insurer shall be liable to pay any claim or provide any benefit hereunder to the extent that the provision of such cover, payment of such claim or provision of such benefit would expose that (re)insurer to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union or United Kingdom or United States of America.
Subject otherwise to the Exclusions, Terms and Conditions of the Policy.
Cyber Liability Exclusion
It is hereby understood and agreed that this insurance shall not indemnify the Insured in respect of any claim or loss arising out of any activities and/or business conducted and/or transacted via the Internet, Intranet, Extranet and/or via the Insureds own website, Internet site, web address and/or via the transmission of electronic mail or documents by electronic means
Subject otherwise to the Exclusions, Terms and Conditions of the Policy.
Excluding all claims and losses based upon, arising out of, directly or indirectly resulting from or in consequence of, or any way involving:
(a) asbestos, or
(b) any actual or alleged asbestos related injury or damage involving the use, presence, existence, detection, removal, elimination or avoidance of asbestos or exposure or potential exposure to asbestos.
Subject otherwise to the Exclusions, Terms and Conditions of the Policy.
Institute Radioactive Contamination, Chemical, Biological, Biochemical and Electromagnetic Weapons Exclusion Clause
This clause shall be paramount and shall override anything contained in this insurance inconsistent therewith;
In no case shall this insurance cover loss damage liability or expense directly or indirectly caused by or contributed to by or arising from a) ionising radiations from or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel
b) the radioactive, toxic, explosive or other hazardous or contaminating properties of any nuclear installation, reactor or other nuclear assembly or nuclear component thereof
c) any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter
d) the radioactive, toxic, explosive or other hazardous or contaminating properties of any radioactive matter. The exclusion in this sub-clause does not extend to radioactive isotopes, other than nuclear fuel, when such isotopes are being prepared, carried, stored, or used for commercial, agricultural, medical, scientific or other similar peaceful purposes
e) any chemical, biological, bio-chemical, or electromagnetic.
Subject otherwise to the Exclusions, Terms and Conditions of the Policy.
MSIG PRL : Ver 2 - 09/02/2015