- Definitions and interpretation
- 1.1In this Agreement, unless the context requires otherwise:
- Business Day: means a day other than a Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in the City of London;
- Confidential Information: means any information that is confidential in nature concerning the Parties and their group companies, including an details of its business, affairs, customers, clients, lenders, funders, plans or strategy;
- Contract: means an unconditional contract for the supply of Services between the Lender and a Customer entered into following an Introduction;
- Customer: means a New Customer and/or a Repeat Customer;
- Fee: means the introduction fee agreed between the Parties on a case-by-case basis or, if applicable, as published by the Lender from time to time;
- Introduction: means the provision by the Broker to the Lender of the property and/or loan details of a Customer (whether in an application form or otherwise) with a view to the Lender providing the Services to the Customer. Introduces and Introduced shall be interpreted accordingly;
- New Customer: means a prospective customer Introduced to the Lender who is/has not been a customer of the Lender or is/has not been in negotiations with the Lender in relation to the Services prior to the date of the Introduction;
- Reduced Fee: means a fee representing 75% of the fee that would usually be paid to the Broker in respect of an Introduction;
- Repeat Customer: means a person or company that has previously been a customer of the Lender or has previously been in negotiations with the Lender in relation to the Services, either as a result of a previous Introduction by the Broker or otherwise;
- Representatives: means employees, officers, advisers, agents or representatives;
- Services: means the provision of finance secured against UK property and companies;
- Term: has the meaning given in clause 2;
- VAT: means United Kingdom value added tax as defined by the Value Added Tax Act 1994 or any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.
1.2In this Agreement:
- 1.2.1a reference to this Agreement includes its schedules, appendices and annexes (if any);
- 1.2.2any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement;
- 1.2.3a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
- 1.2.4a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
- 1.2.5a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
- 1.2.6a reference to a gender includes each other gender;
- 1.2.7words in the singular include the plural and vice versa;
- 1.2.8any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- 1.2.9a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
- 1.2.10a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;
- 1.2.11a reference to a corporate New Customer or Repeat Customer includes its directors and shareholders.
- Commencement and Term
This Agreement commences on the date hereof, or if later, the date on which the Lender confirms to the Broker that its on-boarding requirements have been satisfied, and shall continue in full force and effect unless or until terminated in accordance with clause 10 (the Term).
- Appointment and scope
- 3.1The Lender appoints the Broker, on a non-exclusive basis, to make Introductions during the Term upon the terms and conditions of this Agreement, and the Broker accepts such appointment.
- 3.2The Lender is under no obligation to accept any Customer Introduced by the Broker.
- 3.3The Broker shall have no authority to enter into or conclude contracts with, any person or company, including New Customers or Repeat Customers, for sales of the Services.
- 3.4The Broker confirms that the payment of any Fee or Reduced Fee by the Lender does not impair the Broker’s obligation to act in the best interests of the Customer.
If the Broker employs or otherwise engages a number of individual brokers/introducers, whether as part of a mortgage club, network, or otherwise, the Broker agrees that the Lender will pay any Fees or Reduced Fees to the Broker, and the Broker shall be responsible for accounting to any individual brokers/introducers for any fees/commissions that may be due to them.
- Rights and duties of the Broker
- Fees and expenses
5.1New Customers: The Lender shall pay the Broker a Fee for each New Customer that enters into a Contract for Services with the Lender following an Introduction provided that:
- 5.1.1the Contract for Services is entered into within 3 months of the date of the initial Introduction; and
- 5.1.2the Lender has received the product fee and/or the broker fee stated in the Contract unconditionally and in full from the New Customer; and
- 5.1.3the Introduction was the material cause of the Contract.
5.2Repeat Customers with a new Introduction: The Lender shall pay the Broker a Fee for each Repeat Customer that enters into a Contract for Services with the Lender following a new Introduction provided that:
- 5.2.1the Contract for Services is entered into within 3 months of the date of the new Introduction;
- 5.2.2the Lender has received the product fee and/or the broker fee stated in the Contract unconditionally and in full from the Repeat Customer; and
- 5.2.3the Introduction was the material cause of the Contract.
5.3Repeat Customers with no new Introduction: The Lender shall pay the Broker a Reduced Fee for each Repeat Customer that enters into a Contract for Services with the Lender, notwithstanding that a new Introduction has not been made by the Broker, provided that:
- 5.3.1the Lender has received the product fee and/or the broker fee stated in the Contract unconditionally and in full from the Repeat Customer; and
- 5.3.2the Contract is entered into within 12 months of the initial Introduction of the Customer, or if later, the last Introduction of the relevant Customer, that resulted in a Contract being entered into.
5.4For the avoidance of doubt:
- 5.4.1Notwithstanding clause 5.3, no Fee or Reduced Fee shall be payable to the Broker in respect of a Contract entered into by the Lender and a Repeat Customer if that Repeat Customer has approached the Lender directly in relation to that Contract and informed the Lender that they will not be using the services of the Broker.
- 5.4.2No Fee or Reduced Fee shall be payable to the Broker in respect of the extension of the term of any Contract, or a further advance in respect of an existing Contract, unless agreed in writing at the time of the extension or further advance.
- 5.4.3If a Fee is not agreed between the Broker and the Lender prior to the Contract being entered into, the presumption shall be that the Fee is nil.
- 5.4.4If the Lender is Introduced to a Customer by the Broker and other/multiple third party introducer(s), the Lender shall determine (in its absolute discretion and without being required to provide any reasons) whether the Broker or the third party introducer(s) were the material cause of the contract entered into with the Customer. The Lender shall act in good faith in making such determination.
- 5.4.5If the Lender adopts a standardised Introduction Fee for a particular product and the Broker wishes to agree a lower fee, in order to maintain standardised fees, the Lender may refund the difference between the standard fee and the lower fee to the Customer directly.
- 5.4.6Any Fees published by the Lender may be changed by the Lender without prior notification to the Broker. The Broker shall be deemed to have accepted such change in relation to any transactions introduced to the Lender after the effective date of such change.
- 5.5Within 20 Business Days of the Contract being entered into, the Broker shall provide to the Lender an invoice setting out the Fee or Reduced Fee due for that particular Introduction.
- Taxes and duties
Fees or Reduced Fees due under this Agreement are inclusive of VAT, sales or other taxes or duties applicable for the time being prescribed by law by any authority in or outside the United Kingdom.
- Invoicing and payment
- 7.1The Lender shall pay the Fee or Reduced Fee due to the Broker within 20 Business Days of receipt of a validly issued and undisputed invoice. Time of payment is not of the essence.
- 7.2Amounts payable to the Broker under this Agreement shall be paid into the bank account of the Broker by electronic funds transfer.
- Audit and Quality Insurance
The Lender may, at any time, request information from the Broker to monitor the ongoing performance of the Broker and compliance with the terms of this Agreement. The Broker shall co-operate with, and procure the co-operation of its Representatives in respect of, any such requests, including the provision of all reasonable information and documentation that the Lender may request.
- Limitation of liability
- 9.1The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
- 9.2The parties agree that the limitations in this clause 9 are reasonable given each party’s respective commercial positions.
- 9.3Subject to clause 9.6, the Lender’s total liability shall not exceed the sum of £50,000.
- 9.4Subject to clause 9.6, the Lender shall not be liable for consequential, indirect or special losses or any of the following (whether direct or indirect):loss of profit; loss or corruption of data; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill.
- 9.5Except as expressly stated in this Agreement, and subject to clause 9.6, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
- 9.6The Broker shall indemnify and keep indemnified and hold harmless the Lender from and against any losses, damages, liability, costs and expenses (including legal fees) which the Lender may incur or suffer as a result of or arising from any breach by the Broker of its obligations under this Agreement.
- 9.7Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; any other losses which cannot be excluded or limited by applicable law.
- Confidential Information
- 11.1Each party agrees that it shall keep confidential any Confidential Information in relation to other party and that it shall not use or disclose any such Confidential Information to any person, except as permitted by clause 11.2.
11.2Each party may:
- 11.2.1disclose Confidential Information to those of its Representatives who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that the relevant party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause as if it were a party;
- 11.2.2disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
- 11.2.3use Confidential Information only to perform any obligations under this Agreement.
- 11.3This clause 11 shall bind the parties during the Term and for a period of six years following termination of this Agreement.
- Entire agreement
- 12.1The parties agree that this Agreement and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
- 12.2Each party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
Any notice or other communication given by a party under this Agreement shall be in writing and shall be sent to the address of the other party stated on page 1 of this Agreement or such other address provided by one to the other for the purposes of notices after the date of this Agreement.
- General Provisions
- 14.1Each party shall at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.
- 14.2No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
- 14.3The Broker may not assign, sub-contract or encumber any right or obligation under this Agreement, in whole or in part, without the Lender’s prior written consent.
- 14.4The Broker shall pay all sums that it owes to the Lender under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
- 14.5The parties are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary, agency or other relationship between them.
- 14.6If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
- 14.7If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable.
- 14.8No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
- 14.9No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
- 14.10A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
- 14.11Except as expressly provided for in clause 14.12, 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 of the provisions of this Agreement.
- 14.12Any group companies of the Lender (including any subsidiary, parent or holding companies, as defined in the Companies Act 2006) shall have the right to enforce any of the provisions of this Agreement.
- 14.13This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- 14.14The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).