Terms of payment
These terms apply if your policy with Alpha Insurance A/S (in bankruptcy) (“the Firm”) terminates on 11 August 2018 under Danish law, and a replacement policy with another provider has been put in place for you by one of the following brokers (a “Broker”):
The Financial Services Compensation Scheme (“FSCS”) has taken measures under Chapter 5 of the Policyholder Protection Rules to facilitate the replacement of your Alpha policy from 12 August 2018. FSCS will make a payment to the Broker on your behalf for the cost of your replacement policy. The payment that FSCS shall make to facilitate your replacement policy is in lieu of your right to claim compensation from FSCS in respect of the unexpired portion of a premium that you paid for the Alpha policy, and you will not be able to make a separate compensation claim in this regard, whether to the FSCS, the Danish Guarantee Fund for non-life insurance undertakings (“DGF”), or in the bankruptcy of Alpha.
On FSCS paying the replacement policy cost to your Broker, all of your rights against the Firm and any third party in relation to or in connection with your policy will be automatically assigned to the FSCS pursuant to Policyholder Protection Rule 12.2. In the event that FSCS decides not to pursue recoveries using those rights, then it will, if you request so in writing, reassign those rights back to you.
Under the terms of FSCS’s agreement with the Broker, where you inform the Broker that you wish to cancel the replacement policy during the 30 day ‘cooling off’ period (as advised to you by the Broker), your Broker is required to cancel the replacement policy and to repay the replacement policy cost to FSCS. If you do cancel your replacement policy during the cooling off period, FSCS will reassign your rights back to you and you can make a separate claim for compensation to FSCS or to the DGF.
By accepting that FSCS will pay the cost of the replacement policy to the Broker, you agree and acknowledge as follows:
1. Absent this agreement, you confirm to the FSCS that you would be entitled to claim compensation for losses arising as a result of FSCS-protected business (as defined in the Compensation Sourcebook of the FCA Handbook) with the Firm (“the Claim”).
2. You agree that a payment by FSCS of the cost of your replacement policy (or any part of it) to the Broker (as part of FSCS taking measures under Chapter 5 of the Policyholder Protection Rules) will be in full and final discharge and settlement of the obligations of FSCS in relation to the Claim, under the relevant rules and laws.1 You understand that any payment of the replacement policy cost (or any part of it) by FSCS to the Broker will fulfil your entitlement under the Policyholder Protection Rules in respect of the Claim and that you will not be able to make a separate claim to FSCS or to the DGF in this regard.
3. You acknowledge that all your rights against the Firm will pass to and be automatically assigned to FSCS absolutely on the payment of the replacement policy cost (or any part of it) by FSCS to the Broker.
4. You acknowledge that all your rights against any other person (which constitute a “Third Party Claim” as defined in paragraph 14 below) will pass to and be automatically assigned to FSCS absolutely on payment of the replacement policy cost (or any part of it) by FSCS to the Broker.
5. On payment of the replacement policy cost (or any part of it) to the Broker, you will no longer have the right to make any claim against the Firm or any other person in respect of the Claim or a Third Party Claim, and the right to make any such claims will be vested in FSCS. Any sums that would otherwise be payable to you in respect of the Claim (including any dividend or other payment in a liquidation or compromise with creditors or scheme of arrangement) or a Third Party Claim will be paid instead to FSCS.
6. You will not exercise any right or remedy that you may have or retain against the Firm or any other person arising out of, or in connection with, the Claim or any Third Party Claim, namely:
a. to rescind, set aside, avoid or otherwise alter any contract or obligation;
b. to set off, or reduce liability in respect of such a contract or obligation; or
c. any other right or remedy that is either personal to you or cannot be assigned or both.
7. If you recover any money or assets in respect of the Claim or in respect of a Third Party Claim, you will immediately pay or transfer it to FSCS.
8. If the payment of some or all of the replacement policy cost should not have been made for any reason, you will immediately procure that such amount is fully paid back to FSCS, without any deduction or set-off, plus interest.
9. If following the termination of your policy with the Firm you make a claim under it in respect of an event that took place prior to termination, you will immediately inform FSCS and you agree that FSCS shall be entitled to deduct from any compensation payable in respect of that claim the total amount that it has paid to the Broker in respect of your Claim.
10. You will give all reasonable co-operation and assistance that FSCS asks you to give in connection with any investigation or pursuit by FSCS of claims corresponding to the Claim and/or of any Third Party Claim, including providing documents, providing statements, swearing statements of truth and attending court to give oral evidence. If you make or give (or have made or given) any false or misleading statement, affirmation, or other evidence, you agree to indemnify and protect FSCS against any loss, liability, expense or cost that it may incur directly or indirectly as a result. You also agree, if asked by FSCS, to become a party to any proceedings brought by FSCS in respect of claims corresponding to the Claim and/or of any Third Party Claim.
11. You will give such further help or authority that FSCS from time to time may require to give full effect to the transfer of your rights and/or claims to FSCS under and for the purpose of this agreement. If the automatic assignment referred to in this document is ineffective in transferring any such rights and/or claims to FSCS, then FSCS will still be entitled to benefit from those rights and/or claims and will be entitled to any proceeds of them. All such proceeds will be paid to FSCS. To the extent that the automatic assignment referred to in this document is ineffective in law to pass any rights, claims or causes of action to FSCS, you irrevocably and unconditionally appoint FSCS as your agent in respect of such rights, claims or causes of action and agree that FSCS may pursue or enforce them on your behalf in whatever manner it considered appropriate.
12. FSCS may give a valid receipt to any person in respect of the Claim and/or any Third Party Claim.
13. FSCS will conduct all proceedings and settlement negotiations regarding claims assigned to it reasonably and with due regard to your interests as well as its own.
14. In this document, “Third Party Claim” means any right, claim or cause of action that you have or may have against any person other than the Firm or against any fund or property in the hands of any person other than the Firm in connection with or arising out of the circumstances giving rise to the Claim or otherwise relating to the Claim, whatever the nature of such claims.
15. This agreement is without prejudice to any rights which FSCS may have or acquire against the Firm and/or any third party and to the extent that such rights conflict with the terms of this agreement, FSCS may elect, to which election you consent, which rights and claims it shall pursue.
16. To the extent necessary to give effect to any right, claim or cause of action by FSCS, this agreement shall be severable in its terms.
17. This agreement shall be governed by and understood in accordance with English law and you irrevocably accept the exclusive jurisdiction of the English courts in respect of all matters arising out of or in connection with it.
18. The automatic assignment detailed above is without prejudice to any of FSCS's other rights, in particular its right to make a determination in accordance with its Rules that it shall, upon payment, immediately and automatically be subrogated to all or any part of the rights and claims of the Policyholder against the Firm and/or any third party in respect of or arising out of the of the Claim.
Consent to FSCS use of your personal data - Data Protection
By accepting payment of the replacement policy cost by FSCS:
- the Financial Conduct Authority (“FCA”) and the Prudential Regulation Authority (“PRA”) and any successors to them and third parties acting on their behalf to assist them in carrying out their statutory functions or otherwise to comply with legal or regulatory requirements; and/or
- the FOS where FSCS considers it would assist the FOS in carrying out their functions in helping to resolve complaints and/or the FSCS in resolving claims for compensation swiftly or pursuing recovery proceedings, for example ensuring there is no double payment or otherwise to comply with legal or regulatory requirements.
By accepting payment of the replacement policy cost offered by FSCS you make the following declarations:
1 The rules of the Financial Services Compensation Scheme made by the Prudential Regulation Authority and/or the provisions of the Financial Services and Markets Act 2000, the Banking Act 2009 and the Financial Services Act 2010, the Financial Services Act 2012 and all subordinated legislation made under any of these statutes (in all cases, as amended).