Terms of Business Agreement TOBA

Key Terms

• This agreement sets out the basis on which we will provide our Services to you
• You have certain obligations, including a duty of disclosure (Clause 3, FSG — 'Duty of Disclosure')
• We are entitled to commissions and/or fees (clause 4, FSG — 'Commissions, fees & Remuneration')
• In certain circumstances we may act as agent to the insurer (FSG — 'Acting for Insurers')
• Our liability to you is limited and has exclusions, including a $20 million cap (clause 6)
• We may disclose confidential or personal information to third parties, including our group companies or insurers (clauses 7 & 9)
• We may terminate or suspend this agreement in certain circumstances (clauses 11 & 12)

1. Introduction

Thank you for appointing Arthur J. Gallagher & Co (Aus) Limited (ABN 34 005 543 920) Australian Financial Services License (AFSL) no. 238312 (we, us, our or Gallagher) as your insurance broker and risk management consultant.

These Terms of Business, along with our Financial Services Guide (FSG), contain the terms on which we agree to provide our services (Services) to you (Agreement).

Please read our FSG, which sets out important information about the Services we can provide you, how we and our representatives are remunerated, and our dispute resolution procedures.

If you have a separate service level agreement in place with us, the terms of that agreement will apply.

If you have any concerns or cannot comply with this Agreement, please contact us immediately.

1.1 Appointment

If you have received this Agreement because you are responsible for procuring our Services on behalf of a business which is a company, trust or partnership, we assume that you are authorised to accept these terms on behalf of the business, unless we are notified otherwise in writing.

Where you have received this Agreement because you are the person responsible for procuring our Services on behalf of a company, these terms bind the company and each of the group companies if they also receive the benefit of our Services, unless otherwise agreed in writing. References in this Agreement to "you" or "your" mean the company, each of your group companies or the business, and include your respective employees, officers and agents (where appropriate).

1.2 Term

The Agreement between us is binding as soon as we perform the Services for you after the date you receive this document, unless you notify us otherwise in writing. The Agreement will continue from that time until either party terminates it.

2. Our Services

We will provide the Services with due care and skill, in accordance with relevant professional and ethical standards, and in compliance with applicable legislation.

The Services may be provided to you by one or more of the companies in

our group or an authorised representative of one of those companies as explained in our FSG.

3. Your Obligations

We will rely on the accuracy and completeness of the information you provide to us. We do not independently verify the information you provide before sending it to the insurer.

Before you enter into, vary or renew an insurance contract, you have a legal duty to disclose all material facts and information that are relevant to the insurer's decision whether to accept the risk.

Carefully review your insurance contract to ensure it accurately reflects the cover, conditions, limits and other terms that you require. If the contract does not meet your needs, please contact us immediately.

For further information about your legal duty of disclosure and about your insurance, please refer to our FSG.

4. Remuneration & Payments

Unless we have agreed otherwise, our remuneration typically constitutes:

• a professional broking fee as agreed with you;
• a commission paid to us by the insurer; or
• a combination of fees and

With your prior agreement, we may also charge you for out of pocket expenses, such as travel and accommodation, that we reasonably incur in providing the Services.

For further information about our remuneration, please refer to our FSG.

You agree to pay our fees and all insurance premiums (including any statutory charges) incurred by us in providing the Services on or before the due date stated on our tax invoice.

Unless stated otherwise, all fees in our invoices are exclusive of GST (as defined in A New Tax System (Goods & Services Tax) Act 1999)(Cth).

When you engage us to provide the Services, you consent to us deducting any amounts you owe under this Agreement from any payments we receive on your behalf (such as claims monies or premium refunds). We will advise you in writing of the amount and reason for the deduction within 5 business days of receipt of the payment. We can make deductions at any time, including after you notify us that you are terminating our Services.

5. Third Parties

From time to time, you may instruct us to engage third parties on your behalf in relation to the Services. We will tell you about the fees charged for third party services if we procure them for you or your benefit. Unless otherwise agreed you must pay any relevant fees and expenses, and we will not be liable to any third parties.

6. Limitation of Liability

To the maximum extent permitted by law, our entire liability to you (whether in tort, common law or under statute and whether by reason of negligence or breach of this agreement) will not exceed $20 million in the aggregate.

Notwithstanding the above, we will not be liable to you for any punitive, special, aggravated, exemplary or liquidated damages or indirect, incidental or consequential loss of any kind, including loss of profits or revenue, loss of opportunity or contract, loss of data, loss of production, use or supply, loss of reputation or goodwill, deterioration in value or increased business cost.

Our liability will be proportionate to the share of responsibility we have for any loss you incur, according to the degree to which we (or our employees, authorised representatives or agents) caused or contributed to your loss.

7. Confidentiality

Each party agrees to treat all information received from the other party as confidential and not to disclose it without the written approval of the other party, except where:

• the recipient is the party's professional advisor, who agrees to keep the information confidential;
• disclosure is reasonably required to carry out the Services, including disclosing information to current or prospective insurers, other insurance intermediaries, or a party's group companies;
• disclosure is required by law; or
• the information is already in the public domain, or in a party's lawful possession other than through breach of this Agreement or any other obligation of confidence.