The information in this document may not be reproduced in whole, or in part, any form of reproduction, dissemination, copying, modification of this material is strictly prohibited.
1.1 The following definitions will have the meaning set out below:
“Agreement”
Means the terms and conditions of this user agreement
“Agreed Products”
Means loans secured on property by way of a legal charge (Residential, Consumer Buy to Let and Buy to Let mortgages)
“Applicable Laws”
Means all applicable laws, regulations statutory codes and guidance including, without limitation, the CCA, the FSMA, the FCA Handbook, the Mortgage Credit Directive, the Data Protection Legislation, the Bribery Act 2010, the Consumer Rights Act 2015, and all orders, regulations and guidance made under or published in relation to any of the foregoing and all rules and best practice guidelines and recommendations laid down by the FCA (including without limitation MCOBs), the ICO or any other regulatory body
“Applicant”
Means an applicant or potential applicant for an Agreed Product provided by Us and is the Data Subject as defined in the General Data Protection Regulations
“Applicant Data”
Means data or information, including personal data, in respect of Applicants
“Application”
Means an application for an Agreed Product submitted to us by an Applicant
“Appointed Representative”
Means as defined in FCA Rules
“Broker Fee”
Means the remuneration payable to You by the Applicant which will be administered and paid via Us in accordance with Clause 8 of this Agreement
“Business Day”
Means any day (except Saturday and Sunday) on which banks are open for business in the City of London excluding public holidays
“Complaint”
Means any complaint (as defined in the FCA DISP handbook) from any Applicant or customer of either Party; “Introducer Complaint” shall mean any Complaint relating to the activities of the Introducer or a Sub-Broker; and “Company Complaint” shall mean any Complaint relating to the activities of the Company;
“Confidential Information”
Means all Information (however recorded or preserved) disclosed by a Party or its Representative to the other Party or that Party's Representatives in connection with this Agreement, including the Parties business policies, practices, plans and methods, the contents of this Agreement, including the Parties’ relationship hereunder, and any other information which is either labelled as confidential or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure
“Data Protection Legislation”
Means, the Data Protection Act 1998 and the General Data Protection Regulation ((EU) 2016/679) the Privacy and Electronic Communications (EC Directive) Regulations 2003 as amended by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR or the Data Protection Act 1998, including where applicable the guidance and codes of practice issued by the Information Commissioner or other relevant supervisory authority and the equivalent of any of the foregoing in any relevant jurisdiction (whether mandatory or not)
“Declaration”
Means a declaration form completed and signed or authorised by a Borrower, as part of an Application which covers various aspects of Our processes and statutory obligations that are not contained on the Mortgage Advance application form
“DIP”
Means a decision in principle to accept, decline or refer an Applicant for an Agreed Product
“Effective Date”
Means the date you accept these Terms and Conditions
“FCA”
Means the Financial Conduct Authority or any successor body or bodies
“Force Majeure”
Means in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, war or threat of war, sabotage, civil disturbance, acts of any government or supra-national authority and currency restrictions)
“FSMA”
Means the Financial Services and Markets Act 2000
“Group”
Means in relation to any party, that party, its holding companies, and subsidiaries (where a holding company and subsidiary shall have the meanings in section 1159 of the Companies Act 2006 as amended) from time to time including without limitation any regional brands of any party and “Group Company” in relation to a party shall mean any company or reginal brand within that party’s Group
“ICO”
Means the Information Commissioner’s Office or any successor regulatory authority
“Intellectual Property Rights”
Means all intellectual property rights of any nature anywhere in the world, whether registered or unregistered (and including this Agreement and any application for or renewal or extension of such rights), including copyright, know-how, confidential information, trade secrets, business, trade and domain names, trademarks, service marks, patents, petty patents, utility models, design rights, rights in computer software, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights, rights in goodwill or rights to sue for passing off
“Intermediary Portal”
Means the online channel for the introduction of mortgage business to Us maintained by Us on one or more of Our Websites
“Introducer Agreement”
Means the agreement that We have entered with a Network, Packager or Mortgage Club to procure Services from their representatives
“MCOB”
Means the FCA’s Mortgages and Home Finance: Conduct of Business Sourcebook
“Month”
Means calendar month
“Personal Data”
Has the meaning given in the GDPR
“PRA”
Means the Prudential Regulation Authority or any successor body or bodies
“Process”
(Unless the context otherwise requires) has the meaning given in the GDPR
“RAO”
Means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, as amended from time to time
“Regulated Mortgage Contract”
Has the definition given to it under MCOB
“Related Parties”
Means in respect of a person their respective officers, employees, agents, approved sub-contractors and any other persons who perform services for or on behalf of that person in connection with this Agreement (each a “Related Party”)
“Representatives”
Means employees, officers, agents, advisers, subcontractors, or any other person who is expressly or impliedly authorised to represent either Party in connection with the provision or receipt of the Services
“Services”
Means the generation, collection and forwarding of Applications to Us and (where applicable) the provision of regulated mortgage advice to Applicants by You.
“Suppression Lists”
Means lists maintained by the Introducer of consumers who have withdrawn their consent for, or otherwise opted out of, receiving direct marketing by the Introducer and/or third parties, including Us
“Our Websites”
Means Our internet sites whose URLs are www.tandem.co.uk and any additional or alternative URLs as may be determined from time to time by Us
“Vulnerable Customer”
Means an Applicant who is at greater risk of suffering detriment, or for whom detriment is likely to be more substantial, as a consequence of their personal of financial circumstances
“We”
Means us, being Tandem Bank Limited, and “Our” and “Us” shall be construed accordingly
“You”
Means you, on behalf of your organisation and Group, and “Your” shall be construed accordingly
1.2 The words “data”, “data controller”, “data subject”, “personal data”, “process” and “processing” as defined in the Data Protection Legislation shall have the same meanings in this Agreement.
1.3 Clause and schedule headings do not affect the interpretation of this Agreement
1.4 Words in the singular include the plural and in the plural include the singular and references to any gender include both genders. References to a person include any individual, firm, unincorporated association or body corporate.
1.5 References to any statute, enactment, order, regulation, regulatory rule, guidance or code of practice or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation, regulatory rule, guidance or code of practice or instrument as amended by any subsequent enactment, modification, order, regulation or instrument as subsequently amended or re-enacted.
1.6 References to including and include(s) are to be construed as if they were immediately followed by the words without limitation.
2.1 This Agreement shall commence on the date upon which You register with Us.
2.2 The term of this Agreement is no less than three (3) months from the date of this Agreement (the Term) and shall remain in force until terminated by the giving of notice by one of the Parties or otherwise in accordance with the provisions of Clause 16.
3.1 You should read this Agreement carefully.
3.2 You must be registered with Us in accordance with this Agreement to introduce business to Us.
3.3 By using Our Website and Our Intermediary Portal, You agree to comply with the terms and conditions of this Agreement at the time of registration with Us and on each occasion You submit an Application to Us.
3.4 You warrant that You:
3.4.1 Hold all relevant legal, regulatory and other authorisations, registrations, licences, permission and consents necessary for carrying on Your business and performing Your obligations under this Agreement including current FCA permissions under Part IV of the FSMA and the RAO to facilitate introductions in respect of the Agreed Products and advise on FCA Regulated Mortgage Contracts;
3.4.2 Conduct Your business in accordance with the requirements of all Applicable Laws; and
3.4.3 Conduct Your business in accordance with the Data Protection Legislation.
(collectively Registrations)
3.5 We may have entered into an agreement with Your Network, Mortgage Club or Packager, which details the terms applicable to any introduction of business to Us. It is Your responsibility to ensure that Your Network, Mortgage Club or Packager has advised You of these terms which apply to You. By agreeing to the terms of this Agreement, You agree to comply with all terms under the introducer agreements which apply to You.
3.6 You shall immediately notify Us upon any change in relation to Your Registrations, including the expiry, change or transfer of such Registrations, or investigation, suspension, revocation or any other action or event likely to impact upon the status of Your Registration.
3.7 You warrant and represent to:
3.7.1 conduct Your business in accordance with the requirements of all Applicable Laws and the Data Protection Legislation.
3.7.2 deliver upon demand all relevant up-to-date documents, policies, practices and procedures to Us.
3.7.3 have disclosed all material facts and information, including details of any dialogue with the FCA and the ICO, in providing a fair and accurate reflection of Your compliance with Applicable Laws and the Data Protection Legislation.
3.7.4 Maintain, and regularly monitor and review, appropriate policies and procedures to ensure that You provide the Services in accordance with Applicable Law and Data Protection Legislation.
3.8 Where You become aware of a potential or actual compliance breach with any Applicable Law or Data Protection Legislation, including without limitation any communication from a regulatory body including the FCA, the ICO or local trading standards (whether formal or informal), any potential dispute, claim and/or litigation in relation to the Services or the performance of any obligations under the Agreement (a Compliance Event) You shall immediately notify Us of the matter in writing.
3.9 Upon the occurrence of a Compliance Event, We reserve the right to:
3.9.1 require You to conduct an investigation and provide its findings to the Us;
3.9.2 request immediate access to the relevant files and records (in addition to the rights of audit provided for under Clause 13 below);
3.9.3 oblige You to suspend the provision of the Services, in part or in full (including the suspension, withdrawal or amendment of any relevant financial promotions, other communications to Applicants, or other relevant documentation) pending the matter being resolved to the satisfaction of Us, Us retaining sole discretion to determine the same.
3.10The rights in Clause 3.9 above do not prejudice or in any way impact on Our right to terminate the Agreement upon material breach by You, in accordance with Clause 16 below.
3.11 You have full power and authority and have taken all necessary steps required to enter into this Agreement and this Agreement constitutes valid, binding and enforceable obligations on Your part and that the execution, delivery and performance of or exercising rights under this Agreement by each Party will not breach any applicable legislation or other regulatory rules or guidance.
3.12 You undertake that You shall inform all Applicants that they will be subject to a Cifas Check by the Company and shall draw the Applicants attention to the Cifas Notice.
4.1 From the Effective Date, You warrant and undertake to provide the Services with the reasonable skill, care and diligence of an experienced and diligent Mortgage adviser and Mortgage arranger in accordance with the terms of this Agreement for the Term, including (without limitation) ensuring, where Mortgage advice is provided to Applicants, You are appropriately qualified and trained to provide such advice.
4.2 You shall not be entitled to enter into legal transactions with any Applicants on behalf of the Company.
4.3 When providing the Services You shall comply with all the requirements set out in the Our Broker Manual, product/packaging guides and any written instructions as issued by Us to You from time to time.
4.4 You are responsible for the provision of any advice provided to Applicants. You are fully trained and qualified in accordance with the provisions of the FCA Handbook.
4.5 You ensure that Your employees and agents are of good character and do not act in any way that might adversely affect Our reputation;
4.6 You are fully responsible for Your compliance with the Data Protection Legislation including but not limited to data capture, data use and financial promotions relating to the provision of the Services.
4.7 You shall ensure that You have the requisite authority to provide the data and sufficient data processing consent “opt in” options have been provided to the Applicant.
4.8 Where You promote Us by any means including by publication on a website, orally or via email, You will use only content provided or approved by Us and which is in accordance with Applicable Law, Data Protection legislation and any other applicable guidelines such as the Advertising Standard Authorities guidance on financial promotions .
4.9 All financial promotions issued by You will be updated, replaced or withdrawn as may be requested at any time by Us.
4.10You will maintain for the duration of this Agreement appropriate insurance to cover Your business activities, including without limitation the provision of advice to Applicants, and will make copies of insurance policies available to Us for inspection on request.
4.11 You shall
4.11.1 obtain the appropriate consents from each Borrower before completing and submitting a DIP or an Application and that each Applicant has been provided with a copy of our Privacy Notice or details of where this is published on our Website
4.11.2 Ensure that each Borrower has given their informed consent to any credit check being completed by Us which leaves a ‘footprint’ against the Applicant’s name as part of an Application;
4.11.3 Comply with all processes, criteria and packaging requirements, as may be amended by Us, and notified to You from time to time;
4.11.4 Ensure that each Applicant has given their informed consent to the submission of the Declaration, such Declaration being complete and signed or authorised by each Applicant, as part of the Application which covers aspects of Our Processes and statutory obligations that are not contained on the application form.
4.11.5 Co-operate fully with Us in the investigation of any suspected fraudulent activity;
4.11.6 Ensure that, should You identify any person as a Vulnerable Customer such that we might need to communicate with them in a particular way, then any such Vulnerable Customer is identified as such to us (together with an explanation of their communication needs – to be communicated with Us in writing to referral@tandem.co.uk); and
4.11.7 Ensure that due consideration is given to an Applicant’s circumstances and their status as a Vulnerable Customer when advice is given in respect of any Application;
4.12 You shall not
4.12.1 amend the details contained on any Illustration
4.12.2 self-instruct any valuation report.
4.13 You agree that if You make an Application through a third party, that You have given full authority to that third party to act as Your agent to bind You in all respects when submitting Applications to Us and You take responsibility for any errors or omissions of that third party. In particular, You remain responsible for all of Your and their compliance obligations and obligations under this Agreement to any Applicant notwithstanding any third-party submitting mortgage business on Your behalf. Should that third-party cease to be authorised to submit Applications on Your behalf, You will inform us immediately.
4.14 In relation to all Applications submitted to Us, You warrant to and agree with Us that:
4.14.1 Where You have completed the Application, the Applicant has read and confirmed that the contents of the Application are correct and that You have informed the Applicant that their data will be submitted and tracked electronically by both You and Us for the purpose of processing their Application.
4.14.2 You give Applicant’s advice regarding the suitability of Our products (if permitted by Applicable Law). We do not guarantee that Our products will be suitable for any Applicant.
4.14.3 You have taken reasonable steps to check that the Applicant will meet the requirements of our Lending Policy
4.14.4 Upon submitting the Application, You warrant that the Applicant has authorised Us to check information provided by the Applicant using reasonable means and to retain copies of such results on Our files
4.14.5 You will inform the Applicant and obtain Their agreement to the effect that We are entitled to use any information in connection with the Application for fraud prevention purposes. If We obtain possession of the property because the Borrower breaches any of its obligations resulting from its receipt of a Mortgage Advance, We may disclose information regarding the Mortgage Advance to the HM Revenue and Customs.
4.14.6 We are entitled to make such enquiries as we deem necessary in connection with the Application to confirm the accuracy of the information provided and for credit reference and fraud prevention purposes.
4.14.7 We may make enquiries of credit referencing agencies and produce statistical results as We consider necessary when assessing the Application. You must inform the Applicant that We may make such enquiries and that the agencies concerned may make a record of enquiries for their files and that the records may be used for general assessment and/or debt collection analysis purposes.
4.14.8 In the event that any insurers with whom We have arrangements initiate proceedings or otherwise defend an action relating to any insurance policy created that results from an Application by an Applicant received from You, You acknowledge that You will provide Us with such documentation as such insurers may require and that We are authorised to provide any insurers with such documentation.
4.14.9 You acknowledge that, prior to making the Introduction in relation to one of Our products, You will disclose to the Applicant (i) any fees/or charge(s) that may be payable in respect of any of Our products they have chosen; and (ii) monies and/or benefits You will receive as a result of making the introduction.
4.14.10 We may approach an insurance company for the buildings or buildings and contents insurance, at Our discretion, and where applicable, to obtain insurance for Our benefit in the event that the property is repossessed and sold for less than the outstanding debt and that any information required to be given to the insurance company may be given.
4.14.11 You will pass all documentation that We provide for the benefit of the Applicant to them and pass on to Us any information provided by them to support their Application.
4.14.12 If You submit an Application to Us as a result of a sales lead from a third party , that either You, or if You are an Appointed Representative, Your principal, has entered into an agreement with that introducer (a) providing that the introducer will make such introductions in accordance with Applicable Laws, and (b) including an undertaking from the introducer that they (i) will limit their activities to effecting introductions within the meaning of the applicable exemptions of FSMA only; (ii) will not engage in any regulated activities under FSMA; (iii) will not be paid by the Applicant by virtue of the introduction made by the introducer for or in connection with any Application; (iv) will disclose to the Applicant, prior to making the introduction, any monies and/or benefits he will receive as a result of making the introduction; (v) will disclose to the Applicant, prior to making the introduction, details of any affiliation between the introducer and You; and (vi) will maintain written records of the disclosures under (iv) and (v) that are made; and will comply to Our reasonable requirements regarding the form of any such disclosure and/or record of such disclosure required in this condition.
4.14.13 For all Applications, You will (a) before You submit (or arrange to submit) an Application, advise the Applicant on the suitability of the Agreed Product, provide them with the Illustration and an adequate explanation of it, notify them of the information We require to assess affordability, when We require it and the consequences of failing to provide it in accordance with FCA Rules, and (b) if the terms of the Agreed Product applied for change, provide them with a revised Illustration and adequate explanation in accordance with the FCA Rules.
5.1 You agree to comply with all applicable requirements of the Data Protection Legislation. This clause 5.1 is in addition to, and does not relieve, remove, or replace, Your obligations under the Data Protection Legislation.
5.2 You acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation) up to the point when We offer the Applicant a loan when We also become a Data Controller.
5.3 Without prejudice to the generality of clause 5.1, You will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Applicant Data to Us for the duration and purposes of this Agreement.
5.4 Without prejudice to the generality of clause 5.1, You warrant and undertake that You shall;
5.4.1 process and store the Applicant Data in accordance with the Data Protection Legislation;
5.4.2 ensure that You have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Applicant Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of Your systems and services, ensuring that availability of and access to Applicant Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by you);
5.4.3 ensure that all personnel who have access to and/or process Applicant Data are obliged to keep the Applicant Data confidential;
5.4.4 not transfer any Applicant Data outside of the European Economic Area unless the prior written consent from Us has been obtained and the following conditions are fulfilled:
5.4.4.1 We or You have provided appropriate safeguards in relation to the transfer;
5.4.4.2 the data subject has enforceable rights and effective legal remedies;
5.4.4.3 You comply with Your obligations under the Data Protection Legislation by providing an adequate level of protection to any Applicant Data that is transferred; and
5.4.4.4 You comply with reasonable instructions notified to You in advance by Us with respect to the processing of the Personal Data;
5.4.5 assist Us in responding to any request from a Data Subject and in ensuring compliance with Our obligations under the Data Protection Legislation including but not limited to; the right to be forgotten, data subject access requests, data portability;
5.4.6 assist Us in ensuring Our compliance with the Data Protection Legislation with respect to the security of data, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.4.7 inform Us if You receive any notice of any claims, expressions of dissatisfaction or complaints by an Applicant in relation to the use of their Personal Data;
5.4.8 where applicable, prompt the Applicant to confirm their consent to receive marketing information;
5.4.9 shall maintain up-to-date Suppression Lists, which You will update and notify Us of the same with any unsubscribe requests as soon as practicable and in any event within three (3) Business Days of receiving such a request, and will provide Us with unrestricted access to these;
5.4.10 retain the Applicant Data for no longer than necessary and for the purpose only for which You hold such Applicant Data;
5.4.11 notify Us within 24 hours of becoming aware of an Applicant Data breach at DataProtectionOfficer@tandem.co.uk ;
5.4.12 at the written direction of Us, delete or return Applicant Data and copies thereof to Us on termination of the agreement unless required by Applicable Law to store the Personal Data; and
5.4.13 maintain complete and accurate records and information to demonstrate Your compliance with this clause 5.4 and allow for audits by Us or Our designated auditor.
5.5 We do not consent to You appointing any third party processor of Applicant Data under this Agreement.
5.6 Personal Data
5.6.1 We do not collect Personal Data from You when You access the unrestricted part of Our Website. However, when You visit or register for access to the restricted access part of Our Website, We will collect information about You which We require to identify You, and this may include Personal Data. We may also collect Personal Data when You submit an Application or DIP or use the services or products featured on Our Website.
5.6.2 We will process Your Personal Data for the purposes of identifying You, fulfilling Your instructions, for communicating with You and for the purpose of performing Our obligations and enjoying Our rights under this Agreement. It may also be retained and processed by Us for general research purposes.
5.7 You will not submit any Application or DIP Request unless and until You have provided the Applicant with a comprehensive privacy notice which informs the Applicant that their data will be passed to third party mortgage providers to ensure that we may lawfully use their Personal Data.
5.8 You agree to make the Applicant aware of Our Privacy Notice which can be obtained from Our Website.
5.9 If You send documentation to Us or correspond with Us electronically, You must use a secure encrypted format, or use the document upload facility on our Intermediary Portal.
5.10We may, at any time on not less than 30 days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
6.1 We hereby warrant We shall comply with the Data Protection Legislation and shall comply with Our obligations relating to data security, data marketing and data use of any Applicant Data provided to Us by You.
6.2 We hereby warrant We shall comply with the Applicable Laws.
6.3 We shall use the Applicant Data pursuant to the terms of this Agreement.
6.4 We do not provide any advice to Applicants on the suitability of Our products.
6.5 Where We receive Introducer Complaints, We will promptly notify You of this fact and provide copies of the information We have received in relation to the Complaint to You.
6.6 We do not undertake to accept all business introduced by You and reserve the right, at Our discretion, not to accept business.
6.7 We will then complete the application process and when We are satisfied that all the requirements of the Application have been completed, We will send a mortgage offer to the Borrower and make the mortgage offer and supporting documents available to any solicitor acting for the Borrower as notified to us in writing.
6.8 We will ensure that the information provided on Our Website complied with the Applicable Laws.
7.1 We, in Our sole discretion, may allow You to use certain of Our Intellectual Property Rights from time to time on such terms and conditions as We deem fit. For the avoidance of doubt, any Intellectual Property Rights, know-how, methodologies, equipment, or processes that We may allow You to use, including, without limitation, all copyrights, trademarks, patents, or trade secrets are and will remain Our sole and exclusive property or that of Our Group Companies, Representatives, or licensors.
7.2 We may immediately and without notice revoke any licence to use the Intellectual Property Rights. Upon such revocation You must immediately cease all use of the Intellectual Property including removing it from any existing or ongoing marketing activities and must return or destroy any and all copies of the Intellectual Property within five (5) Business Days.
8.1 Where an Applicant is submitted to Us by You and proceeds to enter into a loan agreement for an Agreed Product as a direct consequence of the introduction by You, You can request that a fee (the Broker Fee) is added to each Agreed Product, to be paid by the Applicant either at the beginning of the loan or to be added to the loan if they so elect, up to a maximum of 8% of the loan amount but no more than £2,495 (Two thousand four hundred and ninety five pounds)
8.2 We reserve the right to vary the maximum Broker Fee value payable in respect of each Agreed Product as set out at Clauses 8.1 upon the giving of one month's notice. You agree that such variations will take affect at the time and date published Us or otherwise notified to You.
8.3 In addition to the Broker Fee, We will pay a Procuration fee at a rate as agreed between Us and the Network, Packager or Club as defined in the Introducer Agreement with such Network, Packager or Club.
8.4 We reserve the right to charge an application fee.
9.1 Where the Applicant chooses to add the Broker Fee to the loan rather than to pay it directly to You, We will endeavour to pay the appropriate sum to You, together with any Commission to the Network, Packager or Club on a frequency agreed with within the Introducer Agreement.
9.2 We cannot be responsible for any delays in transmission of payments due to bank failures.
9.3 Should we provide written evidence that we have made any payment to You or any agent acting on your behalf in error or paid to You on trust, You agree that we shall be entitled to make a demand for immediate repayment or to set off any outstanding fee against any debt owed to You by Us.
10.1 Neither Party excludes or limits liability to the other Party for fraud, death or personal injury caused by its negligence or any other matter in respect of which liability may not be excluded or limited by law.
10.2Subject to this Agreement We shall not be liable to You (whether for breach of contract, negligence or otherwise) for any:
10.2.1 loss of or corruption to data or computer files;
10.2.2 loss of anticipated savings or revenues;
10.2.3 loss of profits;
10.2.4 loss of contracts or business opportunities;
10.2.5 loss of goodwill, or damage to reputation;
10.2.6 indirect, special, or consequential loss or damage; or
10.2.7 loss arising from any claim made by any third party to the extent relating to or comprising any loss or damage of the kind referred to in the previous parts of this Clause 10.2; and
10.2.8 any loss arising from or any claim made by a third party in connection with any marketing or advertising or other activity whatsoever carried out by You for the purposes of this Agreement (including, for the avoidance of doubt, any advice given by You to Applicants).
which arises out of or in connection with this Agreement.
10.3 This clause 10 shall survive the expiry or termination of this Agreement.
11.1 You shall indemnify Us and keep Us indemnified in respect of all liability, losses, damages, claims, proceedings, costs, and expenses (including legal costs and expenses) We may suffer or incur arising from;
11.1.1 any breach by You of Your warranties, representations or obligations under this Agreement (including any breach of any Applicable Laws) or by reason of any misrepresentation or negligent, tortious or fraudulent act except to the extent that the losses have been caused by Our negligence or wilful default; or
11.1.2 the provision by You of any Services which are unauthorised, inaccurate, negligent, unsuitable or otherwise non-compliant with Applicable Law, the Data Protection Legislation or with this Agreement and for the avoidance of doubt this indemnity shall apply to the setting aside of all or part of any loan agreement or any order for redress to an Applicant made by any court or the Financial Ombudsman Service; or
11.1.3 any acts or omissions of You; or
11.1.4 any misrepresentation or statement made by You or any of Your servants or agents to any Applicant.
11.2This clause 11 shall survive the expiry or termination of this Agreement.
12.1You shall deal in an open and co-operative way with Us, the FCA and any other relevant competent authority in relation to reasonable requests or directions by Us to ensure that You are in full compliance with the provisions of this Agreement.
12.2 You shall maintain and make available to Us upon request, detailed records evidencing:
12.2.1 up-to-date Suppression Lists;
12.2.2 all Complaints from Applicants in relation to any aspect of the Services or any activity carried out by You in relation to the performance of Your obligations under this Agreement;
12.2.3 Maintain robust and market standard anti-corruption and gifts and hospitality policies and comply in all respect with such policies;
12.2.4 Keep accurate and up to date records showing all payments made and received and all other advantages given and received in connection with this Agreement and the steps taken to comply with this Agreement and permit Us (or Our authorised representatives) to inspect those records as required;
12.2.5 You shall maintain and preserve any, and all documentation pertaining to the Agreement and its obligations under this Agreement and shall continue to hold such documentation for a period of six (6) years following termination or expiry of this Agreement; and
12.2.6 Promptly notify us of any breach of this Agreement.
12.3 You shall maintain and make available and to Us upon request detailed records evidencing all relevant customer-facing and internal policies and procedure documents, that are relevant to the provision of the Services (including, without limitation, all policies and procedure documents in relation to compliance with Applicable Laws and the Data Protection Legislation) for the Term.
13.1 We shall be entitled on giving at least three (3) days’ notice to You to inspect or appoint Representatives to inspect all facilities, equipment, books, files, records, documents, and electronic data relating to the processing of Applicant Data by You and the provision of the Services including remuneration and all financial promotions including websites, scripts, and communications with Applicants (including by email and SMS).
13.2 You acknowledge that the audit rights at Clause 13.1 shall be invoked by Us annually as part of Our due diligence update and may be invoked more frequently if We in our sole discretion deems this appropriate.
13.3 The requirement under Clause 13.1 to give notice will not apply if We reasonably believe that You are in breach of any of Your obligations under this Agreement.
14.1 You warrant and undertake that You shall:
14.1.1 comply with all Applicable Laws relating to anti-bribery and anti-corruption including the Bribery Act 2010; , the Competition Act 1998 and the Enterprise Act 2002;
14.1.2 have and shall maintain in place throughout the Term policies and procedures including but not limited to adequate procedures under the Bribery Act 2010 and will enforce them where appropriate;
14.1.3 use reasonable endeavours to ensure that all persons associated with You and other persons who are performing obligations in connection with this Agreement comply with Clause 14.1.1 throughout the Term; and
14.1.4 provide such evidence of compliance as We shall reasonably request.
14.2 Promptly report to Us any request or demand for any undue financial or other advantage of any kind received by You in connection with this Agreement.
14.3 You agree to comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015
14.4 You represent and warrant that neither You nor any person employed by You has been convicted of any offence involving slavery and human trafficking.
14.5 You will, at all times, ensure You have in place reasonable prevention processes and controls so as not to cause us in any way to be in breach of the offences contained in the Criminal Offences Act 2017 concerning failure to prevent facilitation of tax evasion; and
14.6 You shall notify us as soon as You become aware of any breach or potential breach of this clause.
14.7 Breach of Clause 14.1 shall be deemed a material breach of this Agreement under Clause 16.2.1 which is not capable of remedy.
15.1 Both parties shall use the Confidential Information solely for the performance of its obligations pursuant to this Agreement and not otherwise directly or indirectly deal with, use, publish or disclose (or allow the publication or disclosure of) the existence, source, content or substance of Confidential Information, other than as permitted under this Agreement.
15.2 The term Confidential Information does not include any information that:
15.2.1 is, or becomes, generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this Clause 15);
15.2.2 was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party;
15.2.3 was, is, or becomes, available to the receiving Party on a non-confidential basis from a person who, to the receiving Party's knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party;
15.2.4 was known to the receiving party before the information was disclosed to it by the disclosing Party; or
15.2.5 the Parties agree in writing is not confidential or may be disclosed.
15.3 Each Party shall keep the other Party's Confidential Information confidential and shall not:
15.3.1 use any Confidential Information except for the supply of the Services under the terms of this Agreement; or
15.3.2 disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 15.
15.4 A Party may disclose the other Party's Confidential Information to those of its Representatives who need to know that Confidential Information for the provision of the Services, provided that:
15.4.1 it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and
15.4.2 at all times, it is responsible for the Representatives' compliance with the confidentiality obligations set out in this Clause 15.
15.5 A Party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it provides the other Party reasonable notice of the same prior to disclosure.
15.6 Each Party agrees:
15.6.1 to immediately inform the other if it becomes aware or suspects that an unauthorised person has become aware of any Confidential Information and/or if any of the Confidential Information is received by each party from a non-entitled party. Each party shall provide each other with all assistance it reasonably requires to prevent any further unauthorised use or disclosure of Confidential Information; and
15.6.2 that if any proceedings are commenced or action taken which could result in the disclosure of Confidential Information by any party (or its Representatives) the party will immediately inform the other party and will take all such steps as are thereafter reasonably directed by the other party.
15.7 PROVIDED THAT nothing in this Agreement shall require the destruction of any Confidential Information stored by means of a routinely created electronic back up or which a Party is required to keep by law or the rules of any regulator, upon the request of a Party, the other Party will return or destroy all Confidential Information and any notes, correspondence, analyses, documents or other records containing the requesting Party’s Confidential Information, including all copies thereof, then in the possession of the other Party or its Representatives. Such return or destruction, however, does not abrogate the continuing obligations of the other Party under this Agreement.
15.8 The provisions of this Clause 15 shall continue to apply after termination of this Agreement.
16.1Either Party may terminate this Agreement for any reason by providing thirty (30) days written notice to the other Party.
16.2 Either Party may terminate this Agreement immediately by giving written notice to the other Party in accordance with Clause 16.3 if the other Party:
16.2.1 commits a material breach of any of the terms and conditions set out in this Agreement; or
16.2.2 convenes a meeting of its creditors or if a proposal is made for a voluntary arrangement or becomes subject to an administration order or has a receiver, manager or administrative receiver appointed over its assets or (being an individual) shall become bankrupt or (being a company) shall have a winding- up order made against it or shall go into liquidation.
16.3 The non-defaulting Party must, as soon as practicable, supply the defaulting Party with written notice specifying the nature of the breach and, where relevant, any actions that are required to remedy it (the Breach Notice); and, where the breach is capable of remedy, the Breach Notice must provide the defaulting Party with a minimum of twenty eight (28) Business Days’ notice to remedy the breach.
16.4 For clarity a material breach is any failure to perform that permits the other Party to the contract to either compel performance or seek damages because of the breach.
16.5 Notwithstanding the above, We may suspend or terminate this Agreement immediately and without notice if You are subject to action by any regulatory body to suspend, limit or revoke any regulatory permission or consent required to fulfil its obligations under this Agreement, or if the Company, on reasonable grounds and acting in good faith, otherwise determines (in its sole discretion) that such action is necessary to prevent:
16.5.1 a breach of Applicable Laws; and
16.5.2 damage to Our reputation.
16.6 We have the right to terminate this Agreement immediately on notice without giving reasons and without liability to You if:
16.6.1 You are in breach of this Agreement or act in any way which, in Our opinion, may be prejudicial to Our interests, including, but not limited to fraudulent actions by You and/or Your staff or agents, damage to Our reputation, Your conviction of a criminal offence which We believe is likely to affect Your appointment and/or non-compliance with relevant legislation or regulations;
16.6.2 You do not or cease to hold any licence, consent, registration or authorisation that is necessary or appropriate for You to hold for the purposes of this Agreement (including but without limitation any licence required by the FCA or any other relevant competent authority);
16.6.3 You withdraw from or cease trading;
16.6.4 You undergo a change of control (as defined by section 840 of the Income and Corporation Taxes Act 1988);
16.6.5 You have: (i) had a winding-up order made against You, (ii) had a petition presented for Your winding-up which has not been withdrawn or dismissed within 14 days following presentation, (iii) had a provisional liquidator appointed to You, (iv) proposed or passed a resolution for winding-up (other than for the purposes of solvent amalgamation or reconstruction), (v) had an administration application filed in relation to You pursuant to clause 12 of Schedule B1 to the Insolvency Act 1986 (“Schedule B1”), (vi) had a notice of intention to appoint an administrator filed in relation to You, (vii) entered into administration within the meaning of Schedule B1, (viii) had a receiver, receiver and manager, or administrative receiver appointed over the whole or a substantial part of Your undertaking or assets, or (ix) proposed or made any composition or arrangement with Your creditors generally (including but not limited to a company voluntary arrangement or scheme of arrangement); or
16.6.6 You have (i) any distraint, execution or other process levied or enforced on any of Your property; (ii) You cease, or threaten to cease, to carry on business; (iii) We reasonably believe that You cannot or will not pay sums owed to Us under this Agreement; or (iv) We reasonably apprehend that any of the events mentioned in this paragraph is about to occur in relation to You and notify You accordingly.
17.1 Upon termination of this Agreement (the Termination Date), whether for breach or otherwise, the following shall occur:
17.1.1 You shall immediately cease providing the Services to Us, including, for the avoidance of doubt any communications, marketing material, advertising (including online advertising) or otherwise publicly sent or published to consumers in relation to Our brand, products and services or Our business as a whole;
17.1.2 If applicable, any IP licence will immediately terminate, subject to the provisions of Clause 7 above;
17.1.3 We will cease to accept Applications from You and will not be liable to pay any Broker Fees in respect of any Applications passed to it by You;
17.1.4 We will pay You all sums due and owing under this Agreement, if any, within thirty (30) days of the effective date of termination, subject to Clause 11 above, unless such sums are subject to a bona fide dispute; and
17.1.5 You will promptly return or destroy all copies of Confidential Information or other information supplied to You by Us, Our Representatives or Our Group Companies in relation to this Agreement.
17.2 We shall be entitled to retain such records in relation to this Agreement as it deems reasonably necessary to satisfy Our legal and regulatory obligations and to evidence compliance.
18.1 You will maintain appropriate policies and procedures in relation to the handling of Complaints and will manage all Introducer Complaints in accordance with the rules and guidance set out in the FCA Handbook.
18.2 Where You receive any Complaint from an Applicant or customer that You consider to be a Company Complaint, You must immediately notify Us and provide full details of the Complaint to Us. If We agree that the Complaint is a Company Complaint, then We and You will notify the complainant of this and We will handle the Complaint. If We disagree, on reasonable grounds, that a Complaint is a Company Complaint, then the Complaint must be handled by You.
18.3 Where We receive any Introducer Complaints, We will promptly notify You of this fact and provide copies of the information We have received in relation to the Complaint to You. You will be responsible for handling all such Complaints.
18.4 You must cooperate with Our reasonable investigations and requests in relation to all Complaints and maintain a written register of all Complaints in accordance with clause 12.
18.5 You confirm You will introduce mortgage business to Us by electronic means via the Intermediary Portal in accordance with these Terms and Conditions and agree to prevent unauthorised use of Your username and password to access Our Intermediary Portal. If You know or suspect any unauthorised use of Your username or password, You must notify Us immediately.
19.1You will ensure that Your computer systems:
19.1.1 Are regularly tested using commercially available anti-virus software for all known viruses, trojans, worms or other software routine or hardware components designed to permit either automatically or through externally applied controls, unauthorised access or use to disable, erase or otherwise harm software, hardware or data; and
19.1.2 Will not cause any intentional errors, intentional security holes or malicious code to be introduced into any of Our computer systems or systems processing Our data.
19.2 You shall:
19.2.1 have in place procedures to manage network threats, vulnerability and risks to ensure You and We can continue to do business securely with each other;
19.2.2 not use any hardware or software that is either no longer supported by its manufacturer or licensor or whose support shall end in twelve months or less, unless otherwise agreed in writing by Us;
19.2.3 when implementing any hardware or software ensure that it is securely configured and vulnerability free; and
19.2.4 have in place and adhere to an industry standard patching upgrade policy and ensure that all vendor supplied security updates (patches) are applied.
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
22.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
22.1.2 sent by fax to its main fax number; or
22.1.3 transmitted by email to the relevant account manager.
22.2 Any notice or communication shall be deemed to have been received:
22.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
22.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the third Business Day after posting;
22.2.3 if sent by fax, on the day of transmission if sent before 4.00 pm on a working day but otherwise at 10.00 am on the next Business Day after transmission; or
22.2.4 If sent by email, on the day of transmission if sent before 4.00 pm on a working day but otherwise at 10.00 am on the next Business Day after transmission.
22.3 This Clause 22 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if that delay or failure results from events, circumstances or causes beyond its reasonable control. In these circumstances the affected Party shall be entitled to a reasonable extension of the time for performing its obligations, provided that, if the period of delay or non-performance continues for thirty (30) days, the Party not affected may terminate this Agreement by giving seven (7) days written notice to the other Party.
24.1 Save expressly provided, neither Party shall assign, novate, or otherwise dispose of this Agreement without the previous consent in writing of the other Party (such consent not to be unreasonably withheld or delayed).
24.2 The Company shall be entitled to assign this Agreement where such assignment is made in connection with the sale or other transfer of any or all of the Company's equity or business assets.
In some circumstances, it may be necessary for Us to vary the terms of this Agreement in order to remain compliant with regulatory developments (including changes in the law, regulatory rules and guidance) or to reflect changes in our business practices. Where We do so, We will provide You with 30 days written notice
26.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
26.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.
28.1 A person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, other than in that Act.
28.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person not Party to this Agreement.
All amounts paid and or received by each Party under this Agreement shall be deemed inclusive of VAT, unless specifically agreed otherwise, We shall not be liable for any retrospective claims for any VAT or similar taxes for payments made or received by each Party which are subsequently deemed to have been subject to VAT where VAT had not been charged or agreed at the time such payment was made.
No Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.
This Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, representations, presentations, understandings and agreements between them relating to its subject matter.
32.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
32.2 The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Updated March 2023.
