+268 2417 1730 info@tig.co.sz

Terms & Conditions

Tibiyo Insurance Brokers (Pty) Limited (TIB)
Trading As
Tibiyo Insurance Group

This document contains important information. Please read it carefully. It sets out a statement of the terms of business on which TIB agrees to act for you as a Client and contains details of TIB’s regulatory and statutory responsibilities under supervision of the 2006 Insurance Act and standard terms and conditions of insurance contracts.

TABLE OF CONTENTS

  1. Business Relationship
    • 1.1 TIB services may include:
      • 1.1.1 Performing services as intermediary under the Insurance Act 2006, entering into, varying or renewing short-term policies and maintaining, servicing and dealing with the policies as intermediary on Client’s behalf, collecting and accounting for premiums paid by Client to TIB and receiving, submitting or processing claims under the policies on Client’s behalf;
      • 1.1.2 Performing other insurance, reinsurance and risk management services as a broker or advisor as discussed and agreed with Client from time to time;
      • 1.1.3 A sole appointment to handle all aspects of Client’s insurance and risk management requirements or a partial appointment which will be agreed and reviewed from time to time.
    • 1.2 TIB will annually discuss its service programme / scope of service document with Client at renewal date for the forthcoming insurance period. All existing services to be rendered to Client shall be discussed, reviewed and agreed in accordance with TIB’s annual remuneration discussion letter.
  2. Client Service
    • 2.1TIB is committed to providing a high standard of professional service. TIB will accordingly:
      • 2.1.1 Render services honestly, fairly, with due skill, care and diligence;
      • 2.1.2 Pay due regard to the interests of Client;
      • 2.1.3 Pay due regard to Client information needs and communicate information to Client in a way that is factually correct, clear, fair and not misleading;
      • 2.1.4 Avoid conflicts of interest or ensure TIB can manage them fairly and disclose such conflicts to the Client; (see also paragraph 12).
      • 2.1.5 Provide information timeously and expeditiously to afford the Client the opportunity to make an informed decision;
      • 2.1.6 Take reasonable care to establish and maintain systems and controls appropriate for its business;
      • 2.1.7 Deal with Client information in a confidential manner.
    • 2.2 The names of the TIB service team may vary from time to time, provided that TIB shall at all times ensure that it will have sufficient and appropriately qualified and skilled staff to perform the Services.
      • 2.2.1If the Client is at any time dissatisfied with the conduct or performance of any member of the service team, which has been addressed previously, but the conduct or performance persists, TIB will endeavour to replace that person as soon as reasonably practical. TIB will not make any changes to the service team without prior notification to the Client.
  3. Communications / Notices
    • 3.1 All Client instructions and notices to TIB are required to be communicated by way of e-mail, facsimile, or by letter. In urgent cases oral instructions or SMS messages will be accepted. Any instruction will form the basis of a record of mutual understanding between the Parties. In view of the aforegoing and the importance attaching to these documents TIB will exercise all reasonable commercial endeavours to confirm all Client’s instructions in writing (by way of e-mail, or facsimile or letter, or recorded in minutes) within a reasonable time and that Client reciprocally acknowledges these instructions in writing.
    • 3.2 In circumstances where TIB has provided Client in writing with advice, proposals, recommendations or premium quotations, no cover can be placed by TIB with insurers unless TIB has received instructions from Client to arrange cover. (see clause 9.2)
    • 3.3 All electronic communications (inclusive of SMS’s) received after normal business hours shall only be deemed to have been received on the following Business Day.
    • 3.4 TIB will take all reasonable steps to minimise or reduce the effects of power outages and has contingency plans in place to deal with these outages to the extent possible. Notwithstanding all efforts in this regard, TIB is not in a position to guarantee that the business will not be adversely affected by continuing power cuts due to our dependence on external service providers such as SEC, mobile networks and internet service providers. These providers enable communications between ourselves, clients and other parties with whom we deal such as insurance and reinsurance markets. In the circumstances, whilst we are affected by outages, we cannot accept responsibility for communications that we cannot receive or are unable to effect.
  4. Proposal Form/Risk Questionnaire
    • For certain classes of insurance, Client will be required to complete a proposal form and/or risk questionnaire. TIB will provide Client with guidance on completing the form; however TIB cannot complete forms on Client’s behalf and accordingly TIB accepts no liability or responsibility in respect of the correctness and/or completeness of the information provided by Client. Client must complete the form fully and accurately and should pay particular attention to Client’s duties of disclosure (see clause 7, Client’s Duty of Disclosure) as it is essential that TIB and insurers are fully informed of all material facts (see clause 7.3) before placing any cover on Client’s behalf.
  5. TIB Appointment and Notice Period
    • 5.1 Unless otherwise agreed to the contrary, in respect of annual contracts of insurance whether paid annually or financed monthly, the TIB appointment shall be effective for a minimum period of one (1) year from the date of TIB’s appointment (“the Commencement Date”), notwithstanding the date of signature hereof. The TIB appointment shall renew automatically for further periods of 12 months annually thereafter, unless terminated during the insurance period (“mid-term”) by either of the Parties providing a minimum of 90 calendar days notice from month end in writing to the other Party, subject to the provisions of clause 6.
    • 5.2 In the event of Client putting the TIB appointment out to tender for the next insurance period or electing not to renew the TIB appointment at expiry date of the insurance policies, notice must be given at least 90 calendar days before the expiry date of the current insurance programme(s). Also refer to clause 11.6.
    • 5.3 An Insurance contract between the Client and the Insurer (Insurance Policy) may be terminated by the Client or Insurer in accordance with the policy cancellation conditions.
    • 5.4 Notwithstanding Client putting out to tender the appointment of its broker from time to time, this Agreement shall continue to govern the business relationship between the Parties, for so long as the Client remains a Client of TIB.
    • 5.5 In respect of annual policies paid monthly, this Agreement shall be effective from date of first inception of Client’s insurances and may be terminated by either of the Parties giving a minimum of 90 calendar days notice from month end. A 30 calendar day cancellation notice period shall apply in respect of monthly policies paid monthly.
    • 5.6 TIB undertakes to inform Client of the impending expiry of the Clients policy of insurance, not more than 80 and not less than 40 Business Days, prior to the said expiry date.
    • 5.7 This Agreement and any written amendments or additions thereto shall be binding on the Parties and will govern their future relationship in perpetuity unless terminated in accordance with clauses 5 or 6.
  6. Termination of TIB Appointment
    • 6.1 This Agreement may be terminated by either Party in terms of clause 5 above, or immediately in any of the following events:
      • 6.1.1 If either Party commits a material breach of any of the terms of this Agreement which is not remedied within 14 (fourteen) Business Days, from date of receipt of notification of such breach by the other Party, except where such breach is due to a cause beyond the control of either Party, or
      • 6.1.2 If either Party is liquidated, becomes bankrupt, makes a voluntary arrangement with creditors, enters into business rescue proceedings or has a receiver or administrator appointed.
    • 6.2
      • 6.2.1 Be deemed to have earned remuneration earned up to the date of termination, inclusive of any notice period, as herein set out. Where annual premiums are paid on a fee based account and the appointment is cancelled by TIB or Client, TIB will be deemed to have earned its fee as agreed on the following scale:
        • 6.2.1.1 60 percent, if termination occurs within 4 calendar months after commencement of any annual period;
        • 6.2.1.2 75 percent, if termination occurs between 4 and 7 calendar months after commencement of any annual period;
        • 6.2.1.3 100 percent if termination occurs after 7 calendar months after commencement of any annual period.
      • 6.2.2 On commission based income, should insurers be required to refund premiums to Client, TIB undertakes to effect to insurers a pro rata refund of commission earned on the refund premium. In the case of a fee negotiated account where commission has been rebated by TIB to Client, a pro rata amount of commission will need to be refunded by Client to insurers based on the pro rata refund premium.
      • 6.2.3 Return to the Client the original Insurance Policies, which may be in TIB’s possession (where these have not previously been delivered or handed to the client, see Clause 9.1) and the risk information provided by the Client used to calculate premiums and claims history/experience for settled claims. In respect of all other information, Client shall only be entitled to copies of information not proprietary to TIB.
    • 6.3 Following a mid-term cancellation of the TIB appointment, the Client shall not be permitted to transfer existing TIB placed insurance covers to another broker to manage and administer up to the expiry date of the insurance period. The Client accordingly agrees to cancel the TIB placed covers in accordance with policy terms and cancellation conditions.
      • 6.3.1 The new broker appointed by Client shall arrange new covers effective from the cancellation date of the TIB placed policies.
      • 6.3.2 The above practice shall also apply to TIB policy placements at expiry date of the insurance period that are not renewed by Client with TIB.
    • 6.4 Termination of this Agreement will not affect the accrued rights and obligations of each Party in respect of any breach of this Agreement occurring prior to termination or the continuance in force of any provision to the extent expressly or by implication which is intended to continue in force, after termination.
  7. Client’s Duty of Disclosure
    • 7.1 It is Client’s responsibility to disclose to insurers via TIB all material information when seeking cover, whether or not proposal or other forms are applicable or completed.
    • 7.2 Cover under each insurance policy is conditional upon the Client’s compliance with its terms, conditions including claims reporting, exceptions and where applicable, its warranties.
    • 7.3 Information is material if it would or may reasonably be expected to affect the insurer’s assessment of the risk whether from the perspective of the premium, or the terms of acceptance of any risk, or if the misrepresentation/non-disclosure induces the insurer to enter into the contract of insurance on particular terms or prevents the insurer from forming its own view as to the effect of such risk information on its assessment. To the extent that the Client is uncertain as to whether or not any such information is “material” and warrants disclosure, the onus rests with the Client to seek clarity from TIB. Note the obligation of disclosure is not limited to material circumstances of which the Client is aware but extends to those circumstances of which the Client ought to be aware in the ordinary course of business;
    • 7.4 The insurer is not obliged to make enquiries about material risk information; the onus falls upon Client as the insured duly assisted by TIB.
    • 7.5 If any material information is omitted or misrepresented, insurers may have the right to void the policy (possibly retrospectively) or reject any claim made in terms thereof. This may mean there is no longer an insurance policy and/or no claims will be paid. It is, therefore, extremely important that Client takes care to provide accurate and complete information to enable the insurers to accurately assess the risk.
    • 7.6 The duty of disclosure arises when the insurance is first taken out and also every time Client renews or amends it. The policy may also include a requirement to advise material changes to Client’s risk profile or business throughout the term of the policy and Client is required to inform TIB as soon as possible of any circumstances that have changed or are likely to materially affect any risk insured.
    • 7.7 Prior to inception (new policy) or renewal (expiring policy) Client must advise TIB of all Client known incidents which reasonably could give rise to a claim not yet reported to TIB. This is material information and non disclosure to insurers prior to inception or renewal date may result in claims being repudiated or cover being voided or alternatively re-negotiation of premium and other policy terms.
    • 7.8 Client history of business liquidation or insolvency needs to be advised to TIB.
    • 7.9 Client is reminded that it may be pertinent to bring to TIB’s attention any material issues arising from their conferring with or commissioning any independent consultants, (including TIB risk consultants) to perform or carry out any services for and on the client’s behalf. If the Client is at all unsure if any such issues are material or not, the Client should confer with TIB.
    • 7.10 Client undertakes to review insurance cover confirmations and advise TIB within 30 days following receipt of them, of anything which the Client believes is not in accordance with its instructions or specifications.
  8. Scope of Proposed Insurance
      TIB will ensure that it:
    • 8.1 Shall arrange the required insurance cover in accordance with the Client’s instructions.
    • 8.2 Explains to Client the scope and intention of the cover sought and the relative costs of insurance.
    • 8.3 Explains the key features of the insurance proposed, including the scope of cover, sums insured and indemnity limits, any significant or unusual restrictions, exclusions, conditions or obligations and the period of the cover.
    • 8.4 Explains details of the participating insurers.
    • 8.5 Shall where possible meet Client’s insurance requirements and, in circumstances where this is not possible, explain the major differences between those requirements and the insurance cover TIB is able to secure.
  9. Confirmation of Cover and Quotations
    • 9.1 TIB will, as soon as reasonably possible, provide Client with the original Insurance Policies, evidencing the insurance cover in place provided TIB has negotiated and placed the cover. Refer additionally to clause 14. It is the Client’s responsibility to safely retain these original contracts of insurance.
    • 9.2 The cover is only in force once the insurer has accepted the risk and confirmed to TIB that it is on risk.
    • 9.3 Insurers may hold the Client covered, at terms to be agreed, after inception or renewal of cover due to the late conclusion of renewal terms. Such hold covered arrangement will cease once the renewal terms have been agreed with Insurers and TIB has received confirmation that Insurers are on risk.
    • 9.4 If any mid-term changes are required to be made to the insurance cover during the insurance period, Client should contact TIB immediately so that TIB may advise the insurers, secure any other information that may be needed, and obtain Client’s approval to effect the required changes.
    • 9.5 When providing a premium quotation for the placement of Client’s business, TIB will ensure its accuracy and that the business can be placed at the quoted price. However in instances where lead insurer terms are obtained which still require further market support to be fully placed, in certain circumstances the follow markets may not accept the lead insurer terms in which case a higher premium or different terms may apply to the entire placement. These higher premium terms or different terms are subject to Client acceptance and TIB cannot be held bound to the original terms provided by the lead insurer.
    • 9.6 In cases where TIB is required to provide estimated terms without approaching the market, TIB cannot confirm the final premium and/or cover until TIB has agreed the costings with insurers and placed the cover.
  10. Payment of Premium
    • 10.1 Cover under any policy is dependent on the premium being paid by the inception date (new policy) or renewal date (expiring policy) subject to the provisions of clause 9.3. TIB is required to issue an invoice to Client as soon as the policy terms are finalised. Where invoices are not presented in time for payment by inception or renewal date, due to the late conclusion of renewal terms (refer clause 9.3) through no fault of Client, hold covered arrangements will be made by TIB with insurers for policy cover to commence at inception or renewal date. All premiums must be paid within ten (10) working days of Client’s receipt of a valid tax invoice from TIB. TIB may not extend credit terms on behalf of insurers to Client. Premiums must be paid in full unless otherwise stated in the policy. Only complete payments can be transmitted to insurers.
    • 10.2 The terms of any hold covered arrangement are exclusive to TIB and may not under any circumstances be extended, utilised or accessed by or disclosed to third party financial institutions or other parties involved in the financing of annual premiums outside of the TIB group of companies.
    • 10.3 Non-payment or late payment of premium by the Client may render the policy null and void. TIB will draw the Clients attention to any premium payment warranty conditions that may apply to the insurance policy.
    • 10.4 In respect of monthly or other periodically paid premiums it is Client’s responsibility to ensure that premiums are paid on time and in accordance with the agreed debit order or other payment arrangements.
    • 10.5 In some instances premiums may consist of a deposit premium and will be subject to adjustment on agreed terms. Payment of the adjusted amount must be made without delay on presentation of the TIB invoice. (see clause 10.1)
    • 10.6 Insurers might not settle claims unless they have received premium payments.
    • 10.7 In accordance with insurance legislation receipt of insurance premiums by TIB constitutes payment to the insurer.
    • 10.8 TIB shall under no circumstances be responsible or liable to pay unpaid premium due to insurers.TIB shall under no circumstances be responsible or liable to pay unpaid premium due to insurers.
  11. Handling of Client Money and Disclosure of Earnings
    • 11.1 TIB will:
      • 11.1.1 Provide details of the premium costs of each of the policies offered.
      • 11.1.2 Annually disclose to the Client its commission earnings flowing from the placement and servicing of the Client’s business. In cases where a negotiated fee arrangement exists, interest earned on rebate commission held by TIB will be retained by TIB (unless expressly agreed to the contrary during the fee negotiation), until the fee has been agreed with Client and paid. TIB will rebate commission after the fee has been paid to TIB.
      • 11.1.3 Earn interest on premium held due to insurers. In accordance with insurance legislation TIB holds a valid guarantee for the collection of premium on behalf of insurers. TIB acts as the agent of the insurer and is entitled to any interest it is able to earn through management of premium balances held on behalf of insurers.
      • 11.1.4 In the absence of any other agreement with Client, pay self insurance premiums promptly to the administrators of the risk finance facility. Further, where TIB administers a claims float interest will accrue to Client (refer to clause 13.4).
      • 11.1.5 Earn interest on money held due to the Client relating to refund premiums and claims payments, pending prompt remittance to the Client.
      • 11.1.6 Earn interest on money received from insurers to facilitate payment of charges or fees levied by service providers who rendered claims or related services to Client or Client’s insurers. Payment to the service providers will be made on customary payment terms.
    • 11.2 If the Client’s requirements expand or reduce from those agreed at inception or renewal resulting in a material increase or decrease in the scope of work performed by TIB, the Parties shall in good faith evaluate the changes and renegotiate the remuneration due to TIB.
    • 11.3 Where the Services includes claims services, TIB’s remuneration includes the costs of servicing and handling insurance claims which can reasonably be expected to arise in the normal course of Client’s business, based on the past reported claims history. Where claims arising are extraordinary in number, value or complexity, additional fees may be charged on a basis to be agreed.
    • 11.4 In the event of a large and/or complex claim occurring, specialist skills may be required, subject to written agreement with the Client. TIB is able to assist the Client with the internal investigation, formulation and quantification of the claim for discussion and agreement with the loss adjuster appointed by the insurer, for an agreed fee.
    • 11.5 TIB reserves the right to charge a fee for TIB’s services if Client ceases to be a Client but wishes TIB to continue handling outstanding claims or other services on Client’s behalf after the expiry of the current insurance period and TIB agrees to do so.
    • 11.6 The fee and/or commission earned for renewal negotiation activities undertaken before and after renewal date, is deemed to be included in the negotiated fee and/or commission paid for the new insurance period.
      • 11.6.1 If Client gives TIB a mandate to proceed with the process of placing negotiated new business or renewal terms prior to the policy inception or renewal date, and Client subsequently terminates the TIB appointment prior to the policy inception or renewal date, it is agreed that Client will pay TIB commission and/or a fee equivalent to 40% of the annual commission and/or agreed fee based on the renewal terms obtained by TIB.
      • 11.6.2 No remuneration will be paid by Client in terms of clause 11.6.1 above, subject to the proviso that TIB has been advised 90 days prior to renewal that the appointment of a broker for the next 12 months will be subject to a tender process and TIB’s appointment is terminated prior to renewal.
    • 11.7 Where the TIB Risk Finance division sets up a risk finance facility on Client’s behalf with a cell captive or other specialist insurer, the fees payable in respect of such facility will be expressly agreed and recorded in a cell captive shareholder’s agreement or policy wording. Risk Finance may be remunerated by the specialist insurer for the placement, servicing and consulting services undertaken in relation to the risk finance facility.
    • 11.8 Other service providers to TIB who may be involved from time to time on Client’s programme will be disclosed and, to the extent required, fees earned. In this regard Client should note:
      • 11.8.1 If appropriate TIB may request wholesale and/or reinsurance brokers to assist TIB in placing the cover in local and international markets. Unless a fee arrangement has been agreed, these brokers will usually be paid for services rendered by commission which will be included in the premiums charged;
      • 11.8.2 TIB iConnect (Pty) Ltd, in terms of an insurer outsourced agent contract, provides services to insurers for policy administration, and other specified services, for which a fee is agreed and annually reviewed with insurers;
      • 11.8.3 If TIB is appointed by Client to provide local services through its AfriNet operation in selected African territories, such services may be undertaken in terms of a separate local agreement subject to its own terms, conditions and agreed remuneration;
      • 11.8.4 TIB will obtain Client and/or Insurer prior approval, as may be applicable, to use the services of external professional loss adjusters, professional consultancy services and public adjusters. The cost of these service providers is for the account of the Client (self insured loss) and/or insurers (insured loss);
      • 11.8.5 All motor own damage claims recoveries and third party defended motor damage claims may, subject to agreement with Client, be handled on an outsourced successful recovery fee basis by attorneys and recovery agents. All such arrangements shall be concluded in terms of a separate contract for an agreed fee. The cost of these services is for the account of the Client (if self insured) and/or insurers (if an insured loss).
      • 11.8.6 TIB Risk Consulting (“MRC”), a division of TIB may be requested to undertake underwriting surveys, risk engineering services, valuations, thermography and relate services for which MRC will earn a fee which will be disclosed to you.
  12. Conflicts of Interest
    • 12.1 TIB will notify the Client promptly of any perceived or actual conflict of interest between TIB’s obligations and duties to the Client under the terms of the Agreement and TIB’s obligations and duties to any third party.
    • 12.2 In accordance with prevailing legislation, Client is advised that TIB has issued a Conflicts of Interest Management Policy which is accessible by Clients.
  13. CLAIMS
    • 13.1 Client’s policy wordings will describe the procedures and conditions associated with the preparation and formulation of a claim. It is essential that TIB is notified in accordance with the underlying policy conditions of any incident or circumstances which could give rise to a claim. In the event of late notification to TIB the insurers may decide to repudiate a claim in terms of the policy or on the basis that their interests have been prejudiced by the delay. When notifying TIB, Client must include all material facts concerning the claim.
    • 13.2 Subject to the provisions contained in clause 11, TIB will:
      • 13.2.1 Give Client guidance on pursuing a claim under the relevant policy or policies;
      • 13.2.2 Handle claims and keep Client informed of progress;
      • 13.2.3 Inform Client in writing if TIB is unable to deal with any part of a claim;
      • 13.2.4 Collect and pay over claim payments to Client, without delay, once a claim has been agreed, settled and paid by insurer(s).
      • 13.2.5 Negotiate Procurement Services in respect of motor claims specifically related to glass, salvage disposal and accident assessments. Client will receive the maximum benefit obtained for these services and no revenue will accrue to TIB. In the absence of any specific agreement to the contrary between TIB and Client, TIB accepts no responsibility or liability for any loss, damage, costs or expenses suffered or incurred by Client, arising directly or indirectly from any act, error, omission, failure or non performance on the part of the Procurement Service Provider whether arising from their negligence or any other cause. TIB will however utilise its best endeavours to assist the Client in ensuring that the Procurement Service Provider performs its obligations.
    • 13.3 Settlement of claims will be dependent upon collection of claim payments from insurers. Interim payments may be made during the negotiation process with an insurer, however, TIB cannot be held responsible for the delay by insurers in facilitating or processing payment of any claim or for non-payment in the event of insolvency of an insurer. TIB are not liable for payment of interest on outstanding or delayed claim payments.
    • 13.4 In circumstances where TIB manages a claims float for a self-insured aggregate on behalf of the Client, a claims float agreement will be concluded and the terms and conditions of that agreement will regulate any receipts or payments of funds.
    • 13.5 In circumstances where either the Client or a third party appointed by the Client manages a claims float or self insured aggregate, TIB shall have no responsibility or liability for receipts or payments of money, any actions or omissions by such parties and/or the late or non reporting of claims incidents that may invalidate the insurance cover in force.
    • 13.6 The insurance policy sets out the various terms, conditions, warranties and exclusions relating to the cover. In the event of a claim, it is the only document which can be used to determine whether or not a claim is payable
  14. Retention of Insurance PoliciesTIB will retain copies of the insurance policies TIB arranged on Client’s behalf in accordance with its FAIS obligations. TIB will automatically destroy copy policy records after these FAIS retention periods have elapsed, unless Client and TIB agree otherwise. TIB will provide this service for as long as the Client remains a Client of TIB.
  15. Transferred Insurance PoliciesTIB does not accept any responsibility for the inadequacy or incompleteness of any of the insurance policies that have been implemented by another party prior to our appointment. However, within 120 days of receipt of policy documents, TIB will complete a review of those insurance policies and make recommendations as necessary to the Client.
  16. Financial Soundness of InsurersFINANCIAL SOUNDNESS OF INSURERS
    • 16.1 It is TIB’s policy to place Client’s business only with TIB approved reputable and creditworthy insurers and re-insurers. Notwithstanding this, TIB cannot and does not guarantee the future financial ability of any insurer or reinsurer to meet policyholder obligations. The final decision on the suitability of any insurer rests with Client and TIB shall not under any circumstances accept any liability arising out of or linked to insurer or reinsurer failure. TIB will keep Client informed of any material concerns which TIB may have as regards insurer financial soundness and possible alternative options.
    • 16.2 If the Client requires TIB to place all or part of the Client’s insurance cover with a market that is not on the TIB approved financial security list, Client is required to formally instruct TIB to this effect.
  17. Complaints Reporting
    • 17.1 Complaints relating to the quality of service rendered should in the first instance be discussed with Client’s TIB contact person. However, if deemed necessary, the complaint may instead be address to the TIB Compliance Department preferably in writing by way of email giving full details of the cause of the complaint and also the full contact details of the complaint to DukesK@tig.co.sz.
    • 17.2 Where the complaint cannot be satisfactorily resolved, the Compliance Department will provide the Client with the details of the Ombudsman for Short Term Insurance for their assistance. (See also clause 21).
  18. Limitation of Liability and Indemnity Insurance
    • 18.1 TIB confirms that, currently it has professional indemnity insurance and fidelity guarantee cover. These covers are renewed annually and TIB will notify you if, at any stage, it is unable to procure such insurance.
    • 18.2 In the event that the Client suffers any loss or damages arising out of or in any way related to TIB’s (including its affiliate’s) performance or non-performance of the Services to be rendered to you in terms of this Agreement, whether arising out of negligence or any other cause, TIB’s liability shall be limited to a maximum aggregate amount of R75 million (Seventy Five Million Rand).
    • 18.3 TIB shall not, under any circumstances be liable to the Client for any indirect or consequential losses, nor for any punitive damages.
    • 18.4 It is understood that from time to time Client may engage TIB’s Risk Engineering services who provide various outsource services such as underwriting surveys, risk control surveys, risk management consulting and the development of operating standards and procedures for TIB clients and others. To the extent that such services are engaged by the Client, Client shall have no claim against TIB and TIB shall have no liability to Client, whether in contract or in delict in circumstances where TIB recommendations, proposals or advice (“recommendations”) are for whatever reason or cause not implemented by Client or where the existence of adverse risk conditions or recommendations are not disclosed to Insurers, save where any such failure to effect disclosure is due to TIB’s negligence, subject always to clause 18.2 and 18.3 above.
  19. Confidentiality and Commercial Data
    • 19.1 TIB will not disclose to any third party, any confidential information provided to it unless;
      • 19.1.1 such disclosure is made to the Client’s insurers or otherwise as required pursuant to the proper performance of obligations outlined in this Agreement; or
      • 19.1.2 that information is already in the public domain or comes into the public domain otherwise than by virtue of a breach of this Agreement by TIB; or
      • 19.1.3 such disclosure is required to be made pursuant to any legal or regulatory obligation or any duty of utmost good faith; or
      • 19.1.4 the Client’s consent to such disclosure is provided, which consent shall not be unreasonably withheld; or
      • 19.1.5 the disclosure is made to any of TIB’s professional advisors for the purposes of seeking advice in relation to this Agreement; or
      • 19.1.6 the disclosure is to a permitted sub-contractor or assignee of this Agreement.
    • 19.2 All confidential information and reports and other materials which contain confidential information and which are provided to TIB by the Client shall be returned by TIB to Client as soon as reasonably practical upon a written request from the Client for their return except that TIB shall be entitled to keep one copy, at its option, for professional indemnity insurance purposes.
    • 19.3 TIB shall use its best endeavours to ensure that the confidential information is only given to employees and directors who may need to see same for the purposes of this Agreement.
    • 19.4 TIB shall use its reasonable endeavours to ensure that any sub-contractors it appoints to carry out any of its obligations contained in this Agreement are bound to the same confidentiality requirements contained herein.
    • 19.5 Notwithstanding the above the Client;
      • 19.5.1 permits TIB’s clients to use its name in documents which identify TIB’s clients; and
      • 19.5.2 is not precluded from requesting that TIB in turn request any third party, to whom disclosure of confidential information is proposed to be given, to agree reasonable assurances of confidentiality.
      • 19.5.3 acknowledges that arranging insurance may involve certain disclosures of personal data to insurers, agents and service providers, including but not limited to consultants, market research and quality assurance companies, other TIB affiliates, industry regulators and TIB auditors. Depending on the circumstances, the disclosure of personal data (including sensitive personal data) to any of the above may involve a transfer outside of the Republic of South Africa.
    • 19.6 The provisions of this clause shall apply for a period of 5 (five) years following termination of this Agreement.
    • 19.7 Client hereby consents, subject to the above conditions to the collection, collation, processing and disclosure by TIB of any commercial information provided by Client to TIB, whether directly or from other sources in the course of TIB’s dealings with Client.
    • 19.8 TIB shall be entitled to use and disclose Client’s commercial information for all reasonable purposes relating to or arising out of the Services provided by TIB in terms of this Agreement from time to time and further consents to such information being made available to any of TIB’s affiliates, holding companies and associates which are contracted to TIB to provide services and to pass such information to such entities for marketing purposes and/or to facilitate new product information in which Client may be interested.
  20. Governing LawTIB undertakes its activities as an insurance intermediary in accordance with the laws of Swaziland and any disputes will be governed by and construed in accordance with the laws of Swaziland.
  21. Dispute Resolution
    • 21.1 In the event of any dispute arising out of or relating to this Agreement, the Parties will attempt to reach an amicable settlement of their differences. Failing such settlement the dispute shall be referred to arbitration
    • 21.2 The arbitration will be governed by and interpreted in accordance with the laws of Swaziland and any award will be final and not subject to appeal other than in circumstances where manifest error exists. This Agreement to arbitrate shall be enforceable in, and judgement upon any award may be entered in, any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either Party notifies the other Party in writing to that effect. These provisions shall not prevent either Party to approach any court or other judicial forum in any country having appropriate jurisdiction to obtain timely injunctive or other relief in cases of urgency.
  22. Intellectual Property
    • 22.1 Any intellectual property (including in particular copyright) which belongs to the Client shall remain the Client’s absolute property. TIB shall have the right to copy documents provided to it by the Client.
    • 22.2 Any intellectual property (including any particular copyright) which belongs to TIB, which has been created by it or which is created by it during the course of this Agreement shall become and remain TIB’s property.
    • 22.3 TIB grants a non-exclusive license to use the reports or advice produced pursuant to this Agreement for the Clients’ own internal business purposes.
    • 22.4 The Client undertakes that it will not release such reports or advice to any third party for any purpose without the prior express permission of TIB, unless such release is made or is to be made as a result of a legal or regulatory obligation or duty of utmost good faith.
  23. Force Majeure
    • 23.1 If either Party is prevented from performing any of its obligations under this Agreement as a direct result of any cause beyond its reasonable control (including without limitation, acts of God, civil commotion, riots, insurrection, fire, explosions, epidemics, strikes, industrial action or labour unrest), the Party so affected shall be relieved of its obligations in terms of this Agreement during the period that such event and its consequences continue, but only to the extent so prevented from performing its obligations, provided always that the Party so affected shall give written notice as soon as reasonably possible after the occurrence constituting Vis Major, setting out full details of its failure to perform. Forthwith upon termination of the circumstances giving rise to the Vis Major, the Party that invoked Vis Major shall give written notice of that fact to the other Party.
    • 23.2 If the performance of any of the obligations of a Party that invoked the Vis Major is precluded by any of the events contemplated in 23.1 above for a period of more than 30 consecutive days at any one time, the Party not claiming Vis Major shall have the right to terminate this Agreement on immediate written notice to the other Party.
    • 23.3 The aforegoing Force Majeure provisions shall not excuse or release the performance of obligations due prior to the occurrence of the Vis Major event.
  24. Electronic Mail ProceduresBoth Parties undertake to each other that;
    • 24.1 Prior to relying on any electronic mail system ensure that mail can be sent and received.
    • 24.2 Where the following documents are sent by electronic mail, TIB shall, on request, send the originals by post;
      • 24.2.1 Instructions to incept, modify or cancel cover;
      • 24.2.2 Confirmation of cover;
      • 24.2.3 Notification of any increase in exposure or any material fact affecting the risk;
      • 24.2.4 Details of legal agreements;
      • 24.2.5 First advice of a claim or possible claim;
      • 24.2.6 Proposal forms.
    • 24.3 They will not intentionally send or open any computer file which they suspect is corrupt or contains computer malware.
  25. General Provisions
    • 25.1 NoticesAll notices that are required to be given hereunder shall be in writing and shall be deemed to have been given if left at or sent by;
      • 25.1.1 first class post or express or air mail or other fast postal service; or
      • 25.1.2 registered mail; or
      • 25.1.3 facsimile, or other electronic mail to either the Client or TIB at the relevant telecommunications number or the registered address of either the Client or TIB.
      • 25.1.4 Any notices given in accordance with the provisions of this clause shall be deemed to have been received on the same day of service if sent by hand and delivered during business hours (08:30 to 16:00) and if by any other means described herein, 48 hours after sending.
    • 25.2 Assignment and Successor
      • 25.2.1 Neither Party shall be entitled to assign or transfer its rights and obligations under this Agreement to any third party without the agreement of the other, however TIB shall be permitted (on notice) to assign this Agreement to other TIB Group companies.
      • 25.2.2 This Agreement supersedes all prior agreements and understandings between the Parties relating to the subject matter of this Agreement.
    • 25.3 Entire Agreement
    • 25.3.1 Waiver
      No failure or delay on the part of either Party hereto to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Agreement are accumulative and are not exclusive of any rights or remedies provided by law.
    • 25.3.2 Severance
      Each of the provisions of this Agreement is independent and severable from the remaining provisions and enforceable accordingly. If any provision of this Agreement shall be unenforceable for any reason but would be enforceable if part thereof were deleted, it shall apply with such deletions as may be necessary to make it enforceable.
    • 25.4 Domicilium
      • 25.4.1 Each Party chooses their respective domicilia as their respective registered addresses for the purposes of the giving of any notice, the payment of any sum, serving of any process and for any other purpose arising from this Agreement
      • 25.4.2 Each of the Parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address within the Kingdom of Swaziland which is not a post office box.
  26. Money LaunderingIn common with all other Financial Service Providers, TIB is obliged to comply with the requirements of the Prevention of Money Laundering Act. To help achieve this, TIB may need to ask Client to provide additional information in relation to any insurance transactions Client asks TIB to undertake. Client is made aware of the fact that TIB and its staff under given circumstances have reporting obligations imposed upon them in terms of this legislation.
  27. Definitions“Advice” refers to any recommendation, guidance or proposal of a financial nature regarding the Client’s short-term insurance needs and/ or objectives;“Agreement” means this General Terms of Business Agreement and any Annexures thereto (if applicable);

    “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Kingdom of Swaziland

    “Confidential Information” includes but is not limited to business methods, financial details, marketing development plans, manpower plans, customer lists or details, trade secrets, Intellectual Property, know-how, technology or Client’s confidential knowledge or information relating to Clients business, affairs, products and services;

    “Commencement Date” means the [insert date];

    “Intellectual Property” includes letters patent, trademarks, whether registered or unregistered, designs, utility models, copyright or applications or any of the foregoing and the right to apply for them in any part of the world, discoveries, creations, inventions or improvements upon or additions to an invention, confidential information, know-how, business names whether capable of being registered or not, moral rights and any similar rights in any country;

    “TIB Remuneration Proposal letter” means the document setting out the remuneration to be earned by TIB in lieu of the Services to be rendered;

    “Mutual Understanding” refers to all advice and/or instructions that has been confirmed in writing by TIB to the Client, which forms the basis of a record of understanding between the Parties;

    “Parties” refers to the Client and TIB and the “Party” shall, as the context requires, be a reference to either one of them;

    “Record of Advice” refers to all documents that relate to or contain the relevant and material content of the advice or intermediary service that is/was provided to the Client;

    “Services” refers to the agreed Services to be provided by TIB as reflected in the TIB Remuneration Proposal letter or ancilliary documentation thereto;

    “Signature Date” means the date of signature of this Agreement by the Party signing last in time.