Terms and Conditions for use of the Master Broker – Introducer Service
Background
Promise Solutions Ltd has developed software (Promise
Quote) which allows brokers to source a range of financial products. This
software is to be made available direct to Promise’s introducing brokers and to
selected master brokers.
Where brokers are accessing Promise Quote via a master
broker other than Promise, the terms and conditions of use are as below and any
commercial terms are as agreed separately with the master broker.
Where brokers are accessing Promise Quote as
registered introducers to Promise, the terms and conditions apply as below.
Promise Quote supports a number of models as follows:-
Technology services, lender plan maintenance and the
user tools within the underwriting engine are provided by Promise Solutions Ltd
under licence. The fulfilment of products for the client and broker, including
broker and customer account management, is performed by the master broker
including, but not limited to, Promise Solutions Ltd and Promise Debt Solutions
Ltd.
1.
Definitions
a)
In this Agreement the following
words shall have the following meaning unless otherwise expressly stated:
”Act" means the Data Protection Act 1998
and any future legislation enacted in replacement or amendment of the Act
including equivalent legislation in the Republic of Ireland (“ROI”).
“Borrower” means an
applicant for a mortgage or other type of loan to be processed using the
Software.
“Broker” means
member, introducer or any person using the service and each of these
definitions shall mean the same.
“CCA” means the Consumer Credit Act 1974 (as amended by the Consumer Credit Act 2006)
“Charges” means the fees and expenses and all
other charges set out in Schedule 2, as may be amended from time to time in
accordance with this Agreement;
“Commencement
Date” means the
date that you click to accept the terms and conditions in the Service;
"Company" means Promise Solutions Limited,
whose trading office is at Promise House,
“Company Materials” means the software and any
documentation, materials, software, equipment, data and all other materials
owned by or licensed to the Company and created in the course of, or used to
perform, the Services and shall be deemed to include any modifications,
enhancements or developments to such materials made during the course of
providing the Services;
“Confidential
Information”
means any and all secret or confidential information (including without
limitation: commercial; financial; marketing; technical; information, together
with know-how, trade secrets and other information in written, electronic or
any other form or medium), whether disclosed before, on or after the date of
this Agreement;
"FSA" means the Financial Services
Authority, 25 The North Colonnade, Canary Wharf,
"FSMA" means the Financial Services and
Markets Act 2000 and any of its accompanying rules and regulations including
equivalent legislation in ROI.
“Force
Majeure” means any
event outside the reasonable control of either Party affecting its ability to
perform any of its obligations (other than payment) under this Agreement
including without limitation: fire; flood; lightning; war; revolution;
terrorism; riot; strike; lock-out or other industrial action; failure of supplies
of power, fuel, transport, equipment, raw materials or other goods or services;
“Intellectual
Property Rights”
means any patent, copyright, database right, moral right, design right,
registered design, trade mark, service mark, domain name, metatag, know-how,
model, unregistered design (and any application for any such right) or other
intellectual property right anywhere in the world;
“Master Broker” means a broker using the promise
quote technology within it’s own business and providing a version of promise
quote to its introducers enabling them to source secured loans, unsecured loans
and debt management. The Master Broker is defined as the company providing this
service its own name to its introducing brokers as shown on any white labelled
version of the service;
"MCOB" means the Mortgage Conduct of
Business Sourcebook comprising part of the FSA's Handbook of Rules and
Guidance.
“Party” means the Company, the Master
Broker or you as the case may be;
“Promise” means the software systems, account
management, packaging service, ancillary products and services and commission
terms provided to those introducers or brokers or Master Brokers using the
service in any way.
"Service Level 1” means an introducer who provides the
Company or Master Broker with a prospective Borrower’s details, name, address
and telephone number. The Company or Master Broker then maintains primary
contact with the Borrower regarding the completion and submission of a mortgage
or secured loan application.
"Service Level 2 and 3" means an introducer
who maintains primary contact with the Borrower regarding the completion and
submission of a loan application. The Company or Master Broker will undertake
primary contact with borrower once the relevant application has been received.
“Service” means the service provided by the
Company using the Software and any other associated services which are provided
by the Company to you from time to time;
“Software” means the software application
known as Promise Quote or Pinpoint enabling You to source products for
Borrowers and complete loan or other type of applications and receive loan
documentation in accordance with this Agreement.
“Subject Matter” means use of the service under level
1,2 and 3 as defined
"You" means a user of the Service who is
dealing and sourcing directly with potential borrowers and who is a Party to
this Agreement by accepting these terms and conditions in the log on and
registration process when accessing the Service (and “Your” shall be construed
accordingly).
b)
The headings contained in this
Agreement are for convenience of reference only and shall not affect its
interpretation.
c)
References to “person” includes an
individual, company, firm or partnership.
d)
Words indicating the singular shall
include the plural and vice versa. Words
indicating a gender shall include each gender.
e)
The words and phrases “including”
and “in particular” shall be without limitation to the generality of any
preceding words and any preceding words shall not be construed as being limited
to a particular class where a wider interpretation of those words and phrases
is possible.
f)
References to any statute or
statutory provision shall include (i) any subordinate legislation made under
it, and (ii) any provision which subsequently supersedes it or re-enacts it
(whether with or without modification).
g)
All sums payable hereunder are
expressed exclusive of VAT (where applicable) and any other applicable tax and
duty payable upon such sums which shall be added if appropriate at the rate
prevailing at the relevant tax point.
2.
Duration
a)
This Agreement shall come into force
on the Commencement Date and (subject to the provisions for earlier termination
in this Agreement) shall continue in force unless and until either Party gives
to the other not less than 30 days prior written notice of termination.
3.
Licence
a)
The Company grants to You a
non-exclusive, non-transferable, licence for You to use the Software and the
Service for the duration of this Agreement for the sole purpose of sourcing
products for Borrowers and loan applications and receiving loan documentation
in accordance with this Agreement.
b)
You shall use the Software and the
Service solely for Your internal business purposes and not use the Software or
the Service to provide any form of bureau services, managed services,
outsourced services, sublicensing, time sharing, rental, facility management,
or to process data on behalf of a third party or provide any other form of
services or access to the Software or the Service to any third party.
4.
Your
Obligations
a)
You warrant to the Company that you
have full capacity and authority to enter into this Agreement including any
required authority from any parent company or other relevant company.
b)
You shall ensure your continuing
authorisation by the FSA in relation to all relevant regulated activities as
defined by FSMA and, in the event of cancellation or variation of your
authorisation either on your own volition or at the FSA's own initiative, You
shall notify the Company of such cancellation or variation within seven days.
c)
You shall be responsible for your
connectivity to the Internet or to the Company’s servers.
d)
You shall be responsible for
ensuring your IT system is compatible with the Software in accordance with the
system requirements notified by the Company from time to time.
e)
You shall comply with all relevant
laws and legislation including without limitation the Consumer Credit Act 1974 (as amended by the
Consumer Credit Act 2006), the Financial Services and Markets Act 2000 and all
regulations there under, all rules, regulations and other requirements of the Financial Services Authority (FSA), and all
provisions of the Act.
f)
You shall ensure that all Your staff
and sales representatives (whether employed or engaged on a self-employed
basis) are provided with adequate training, evidenced with appropriate records
and that they are made fully conversant with the contents of this Agreement and
in particular the canvassing provisions under the Consumer Credit Act 1974. In
cases involving lending to “non-status” Borrowers, comply in all respects with
the Office of Fair Trading's (OFT) Guidelines for
lenders and brokers issued November 1997. Further, the principles of good
business practice contained in the guidelines should also be applied to all
other aspects of Your business.
g)
For the duration of this Agreement,
and for a period of six months after termination of this Agreement, You shall
not solicit or attempt to solicit, entice away or attempt to entice away the
custom of (or enter into a referral relationship with) any referrer,
introducer, or any other person the details of whom were obtained from the
Company under or in connection with this Agreement unless agreed in writing by
the company.
5.
Service Level 1
a)
Where you are acting as a Service
Level 1 introducer you
agree that you cannot provide any advice or recommendation to the Borrower
relating to the transaction carried out in connection with the Software or
Service and you acknowledge that the Company or Master Broker will maintain
primary contact with the Borrower.
6.
Service
Level 2 and 3
a)
This Clause 6 shall only apply where
you are acting as a Service Level 2 or 3 introducer or a Master Broker.
b)
You will be solely responsible for ensuring that all
applications for finance are completed correctly and in full and that to the
best of Your knowledge are true and accurate.
c)
Where
you are using the Service to introduce mortgages You shall maintain a current
valid registration with the FSA and comply fully with FSA requirements for
mortgage intermediaries and any future related statutes.
d)
You shall not mislead or misinform a Borrower nor
misrepresent any aspects of any loan application to the Company
e)
You
shall not use high-pressure sales techniques; engage in the coercive promotion,
of loans, manipulate valuation figures, inflate Borrowers income, distort
employment, details or misstate or distort any other fact so as to satisfy
status requirements.
f)
You
shall not encourage, persuade or allow Borrowers to sign any forms or
documents, which are blank or only partially completed. After review, loan
applications must be signed and dated by the Borrower(s) in his/her hand.
g)
You
shall provide copies of all relevant loan documentation at the earliest
possible stage and allow the Borrower adequate time to, understand and consider
the terms and conditions of the loan.
h)
You
shall not contact the Borrower in relation to a regulated secured loan
agreement at any time during the consideration period except when specifically
requested, in writing, to do so by the Borrower, such request to be made after
the advance (section 58) copy of the agreement has been given to the client.
i)
You shall not, in the case of loans regulated by the CCA,
charge up front fees and shall ensure that any other fees are clearly
communicated to the Borrower in writing in either the Consumer Credit Agreement
or Key Features Documentation as appropriate and in accordance with the
requirements of the FSA and the OFT as appropriate. A breach of this
requirement may render unenforceable a loan agreement regulated by the CCA.
Agreements thus made void will result in the reclamation of commissions paid
and a demand for compensation.
j)
You shall explain fully to the Borrower the
terms and conditions of any protected payment insurance policy or life
insurance policy which might be arranged in connection with the loan including
any limitations of cover, and further to inform the Borrower that such
insurance cover is not obligatory and is entirely optional. The appropriate
literature must be given to the Borrower(s) at the earliest opportunity.
k)
You
will be responsible for any advice, if given, on the suitability of any product
sourced through the Software or the Service or made available to You by the
Company.
l)
Where
there are to be fees deducted from the loan advance (such as those relating to
introducer fess, legal fees or insurance premiums), You shall ensure that the
Borrower is in full agreement to the fees being deducted and the Borrower fully
understands the nature and purpose of the fees. Where applicable, You undertake
to forward relevant premiums to the appropriate third parties (such as net
insurance premiums)
m)
You
shall at all times provide customers with the relevant information on any
product to enable them to make an informed choice or take into consideration
such information when providing advice.
n)
If
visiting a customer at home to discuss a
secured loan regulated under the CCA you will obtain written permission from
the prospective borrower for the visit to take place, such permission being
obtained on an occasion prior to the visit.
7.
Use
of the Service
a)
You agree that the Company may carry
out a number of checks before granting you full login rights and may suspend
Your account without liability if such checks cannot be completed successfully.
b)
You shall notify the Company
immediately if you cease to meet any of the conditions for using the Services
for example if your consumer credit license is revoked or expires.
c)
You shall keep your login details
secret and use them only for yourself. You are responsible for the security of
your passwords. For example if a member of your staff leaves or no longer
requires access to the system you should ensure that their login is removed.
d)
You shall notify the Company
immediately if you suspect a security breach (for example if you believe Your
account is being accessed by a third party).
e)
You may not use the Service:-
·
in a way that damages, impairs the
Service or reduces the quality of the Service or makes the Service unavailable
to others;
·
without proper consent from the data
subjects;
·
using automated means such as a
“BOT”, spiders or other automated means that makes requests to the Service via
any means other than through an internet web browser;
·
by gaining or attempting to gain
unauthorized access to the servers or software that breaches the Computer
Misuse Act.; or
·
to make any defamatory, obscene or
unlawful statements.
f)
This underwriting engine is provided
to registered Service Level 1 users free of charge to help source secured loan
enquiries for qualifying customers. There are costs associated in
providing this service, not only in terms of development and ongoing
maintenance, but also providing credit searches to aid the sourcing
process. It is therefore expected that all qualifying customers, where a
product is sourced through Promise Quote, are submitted to Promise or the Master Broker
for processing and fulfilment or are processed direct to a lender only in
accordance with the Promise Solutions Network pricing structure and commission
terms as agreed in writing from time to time.
Failure to do so may result in termination of this agreement.
g)
You are responsible for maintaining
any necessary copies or backups of Your data. The Company holds data prior to
submission for Your convenience however makes no guarantee as to its
availability and reserves the right to delete this data without notice. If Your
account is suspended or unused for a period of time the Company may choose to
delete this data to comply with the Data Protection Act.
8.
The
Company’s Warranties
a)
The Company warrants to You that:
·
it has full capacity and authority
to enter into this Agreement including any required authority from any parent
company or other company in its group;
·
it will perform the Services with
reasonable skill and care by a sufficient number of appropriately experienced,
qualified, competent and trained personnel in accordance with good industry
practice;
·
there are no actions, suits or
proceedings or regulatory investigations pending, or to Promise’s knowledge,
threatened against or affecting Promise before any court or administrative body
that might affect the ability of Promise to meet and carry out its obligations
under this Agreement.
b)
The Company does not warrant and you
acknowledge that the Software or the Service will be available at any
particular time and does not warrant that the Software or the Service will be
uninterrupted or error free.
9.
Charges
and Commission
a)
Terms
relating to commission or other payments from the Company to you shall be as
separately agreed and recorded and shall be inclusive of VAT unless otherwise
agreed in writing. Commissions displayed via the Software are intended to be a
reliable guide but are not warranted against error and may vary due to changes
in lender terms or other reasons from time to time.
b)
Where
the service is made available to you as a member of a Mortgage Network,
Mortgage Club, via a Master Broker or other group, commissions will be as
advised to you by them from time to time. Such commission payments may be paid
to the club, network or group subsequently to be paid by them to you as is the
practice agreed between you and your respective club, network or group. Promise
has no liability to pay commissions direct to the introducing broker unless
specifically specified.
c)
Where the service is used under
levels 1, 2 or 3, clients who wish to proceed, where a product is sourced
through Promise Quote will be referred to Promise Solutions or the Master Broker
for the processing or packaging of that product. In return, the introducing
broker will be paid a commission in accordance with the terms published on this
or as agreed separately in writing between the
parties
d)
Where brokers have a direct
relationship with lenders/providers they can package products which have been
sourced through Promise Quote direct with the lender/provider only under the
separate terms agreed with Promise Solutions separately
in writing between the parties
e)
Occasionally,
following completion of a loan/mortgage, the Borrower may subsequently cancel
the loan, adjust the amount borrowed, cancel any payment protection cover or
adjust the amount of cover. In such instances Promise brokers will be required
to immediately repay the amount of any overpayment of commission to Promise
Solutions. Where sufficient pipeline
commission is available Promise will deduct any overpayment due from the
pipeline commission.. Otherwise the Introducer will be required to remit the
relevant amount. In the case of an alternative Master Broker claw back will be
as agreed in their terms and conditions
10.
Intellectual
Property Rights
a)
All Intellectual Property Rights in
the Company Materials shall remain vested in the Company and/or its licensors.
b)
All users of Promise Quote and the
company agree to indemnify and keep indemnified the other Party against all
damages, losses, costs and expenses (including without limitation reasonable
legal fees) resulting directly or indirectly from any claim that the operation,
possession or use of any materials supplied by the indemnifying Party to the
indemnified Party in accordance with this Agreement infringes the Intellectual
Property Rights of a third party provided that the indemnified Party:
·
gives notice to the indemnifying
Party of any such claim of infringement as soon as it becomes aware of such
claim of infringement;
·
gives the indemnifying Party reasonable
assistance (at the reasonable cost of the indemnifying Party) in connection
with the defence of any such claim of infringement and does not admit liability
or attempt to settle or compromise such claim without the prior agreement of
the indemnifying Party; and
·
uses its reasonable endeavours to
mitigate any damages, losses, costs and expenses resulting from such claim of
infringement.
c)
In the event of a claim of
infringement of the Intellectual Property Rights of a third party, the Company
shall be entitled to:
·
procure the right for you to
continue using the Services or the infringing part thereof; or
·
make such modifications to the
Services or relevant parts thereof so that the Services become non-infringing
without incurring a material reduction in the quality or performance of the
Services; or
·
replace or re-perform the Services
or relevant parts thereof with non-infringing substitutes provided that such
substitutes do not entail a material reduction in the quality or performance of
the Services.
11.
Confidentiality
a)
Subject to Clause 11.2, all
Confidential Information disclosed or obtained as a result of the Agreement
shall be kept confidential by the Parties and neither Party shall use nor
disclose the other Party’s Confidential Information for any purpose other than
performing its obligations pursuant to the Agreement. Where such Confidential Information is
disclosed by a Party to its employees, agents or contractors, it shall be
subject to confidentiality obligations equivalent to those set out in this
Agreement. Each Party shall procure that
all such employees, contractors and agents comply with such obligations.
b)
The obligations of confidentiality
in Clause 11.1 shall not extend to any disclosure of Confidential Information
which either Party can show:
·
is necessary for the proper
performance of its obligations under this Agreement;
·
has been carried out with the prior
consent of the other Party;
·
is in, or has become part of, the
public domain other than as a result of a breach of the obligations of confidentiality
under this Agreement;
·
was in its records prior to the
Commencement Date (other than from the disclosing Party);
·
was independently disclosed to it by
a third party entitled to disclose the same without any duty of
confidentiality; or
·
is required to be disclosed under
any applicable law, stock exchange requirement, or by order of a court or
governmental body or authority of competent jurisdiction.
12.
Data
Protection
a)
Any
terms used within this clause that are defined in the Act shall have the same
meanings as are given to them in the Act.
b)
You
undertake that You:
·