Terms of Business for Intermediaries
Effective from 25 May 2018
These Terms of Business set out the conditions under which Family Building Society and National Counties Building Society accept mortgage applications from a mortgage intermediary (Intermediary).
1.1 In these Terms of Business, the following definitions shall apply:
‘Applicable Regulations’: means all laws, regulations, orders and directions from Regulators, including but not limited to FSMA, the FCA Handbook, the PRA Rulebook, the General Data Protection Regulation (EU) 2016/679, the Money Laundering Regulations 2017, the Terrorism Act 2000, the Proceeds of Crime Act 2002, the Bribery Act 2010, the Mortgage Credit Directive Order 2015 and the Criminal Finances Act 2017;
‘Applicant(s)’: means a person or persons applying for any mortgage product or mortgage related service offered by the Society;
‘Application(s)’: means an application for a mortgage product or mortgage related service which has been completed by the Applicant and sent to the Society either by Yourself or otherwise for assessing and processing in accordance with these Terms of Business;
‘Appointed Representative’: means a person who has a contract with a FCA or a PRA authorised person (the ‘Principal’) which permits the Appointed Representative to carry on Regulated Activities for which the Principal has accepted responsibility and has permission to carry on;
‘BTL Statement of Practice’: means the Council of Mortgage Lenders (CML) Buy to Let Statement of Practice (as amended from time to time) a copy of which is available at www.cml.org.uk;
‘Cross Selling’: means selling a different product or service to an existing customer;
‘Complaint(s)’: has the same meaning given to it as noted within the FCA Handbook;
Data Protection Laws: means all applicable laws relating to data protection, the processing of personal data and privacy, including:
(a) the Data Protection Act 1998;
(b) (with effect from 25 May 2018) the General Data Protection Regulation (EU) 2016/679;
(c) the Privacy and Electronic Communications (EC Directive) Regulations 2016 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and
(d) any legislation that, in respect of the United Kingdom, replaces or converts into domestic law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy as a consequence of the United Kingdom leaving the European Union;
‘FCA’: means the Financial Conduct Authority and any successor thereto;
‘FCA Handbook’: means the FCA’s handbook of rules and guidance made pursuant to FSMA;
‘FSMA’: means the Financial Services and Markets Act 2000;
‘Illustration’: has the same meaning given to it as within the FCA Handbook;
‘Intermediary’: means a mortgage broker, intermediary, introducer or Appointed Representative from whom the Society accept Applications;
‘MCOB’: means the Mortgages and Home Finance: Conduct of Business sourcebook contained within the FCA Handbook;
‘Panel’: means persons, whether they are acting as Intermediaries, Brokers, Introducers, Appointed Representatives or otherwise, whom are registered on the Society’s panel for the purposes of submitting Applications on behalf of Applicants;
‘Permissions’: means authorisations, permissions, licences or consents required by Applicable Regulations, including but not limited to permission to carry on Regulated Activities under FSMA;
‘Personal Data’: has the same meaning as set out in the Data Protection Laws in force at the time ;
‘PRA’: means the Prudential Regulation Authority and any successor thereto;
‘PRA Rulebook’: means the PRA’s rulebook of guidance and rules;
‘Regulated Activities’: has the same meaning given to it as within the FCA Handbook;
‘Regulated Mortgage Contract’: has the same meaning given to it as within the FCA Handbook;
‘Regulator’: means the FCA or the PRA or any other authority or Regulator of activities carried on by You or the Society;
‘Society’: means Family Building Society (a trading name of National Counties Building Society) and / or National Counties Building Society and all references to Society in these Terms of Business shall be construed accordingly;
‘You’, ‘Your’ or ‘Yourself’ means You, whether You are acting as an intermediary, broker, introducer, Appointed Representative or otherwise, in accordance with these Terms of Business;
‘Us’, ‘Our’ or ‘We’ means the Society.
1.2 A ‘person’ includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.3 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.4 A reference to ‘writing’ or ‘written’ includes fax and email
1.5 Any words following the terms ‘including’, ‘include’, ‘in particular’ and ‘for example’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, phrase or term preceding those terms.
2. The Relationship between the Intermediary and the Society
2.1 When You introduce an Applicant to Us, You agree to:
(i) in accordance with all Applicable Regulations and recommendations of any Regulator, professional body or trade association including without limitation, the BTL Statement of Practice, carry out Your activities in accordance with good industry practice in good faith and so as not to prejudice Our reputation or cause Us to breach any Applicable Regulations;
(ii) use all reasonable skill, care and efficiency of a diligent provider of services of a similar nature and in accordance with normal good industry practices and standards;
(iii) obtain any consents that may be required from the Applicant in order for You and Us to perform Our mutual obligations pursuant to these Terms of Business;
(iv) use appropriately skilled, competent, efficient, experienced and sufficient numbers of persons, whether they be employees, contractors or otherwise and at all times procure that such persons act in accordance with all Applicable Regulations; and
(v) only use up to date information and literature, application forms or any other relevant information provided by Us, either electronically, in paper format, via Our website or otherwise.
2.2 When You introduce Applicants to Us, You are not appointed as or acting as Our agent. You do not have the authority to make representations, agreements or promises to anyone on Our behalf or act on Our behalf in any other way other than in Your capacity as an Intermediary. You must ensure the Applicant is made aware of this.
3. Intermediary’s Obligations
3.1 With regard to any Application submitted to Us, You undertake and agree that You will, at all times:
(i) provide the Applicant(s) with Our “How We Use Personal Information” document before submitting the Application to Us;
(ii) verify the Applicant’s identity in accordance with all Applicable Regulations and ensure that the Application has been fully and properly completed;
(iii) take all reasonable steps to ensure that the information the Application contains is complete, accurate, correct and not misleading and forward to Us any relevant documentation We require, as We may notify to You from time to time;
(iv) notify Us immediately if You become aware of any errors or inaccuracies in respect of the Application or if You suspect any fraudulent activity on the part of the Applicant;
(v) maintain proper records of all transactions;
(vi) You will forward promptly to Us monies You have received on Our behalf; and
(vii) You will ensure that all information, whether provided to the Applicant orally or in writing, including but not limited to any marketing literature, product and / or service information, shall comply with the financial promotion rules contained within the FCA Handbook and any other requirement We notify You of from time to time.
3.2 With regard to each Application, You are required to adhere to the following:
(i) where an Application relates to a Regulated Mortgage Contract, provide the Applicant with all documentation required by and in accordance with MCOB. In relation to Regulated Mortgage Contracts, We will only accept Applications when You are providing Applicants with an advised sales service and providing adequate explanations to the Applicant in accordance with MCOB. It is Your responsibility in this regard to ensure that all FCA rules on advised sales are complied with;
(ii) where an application relates to any other product and / or service, provide the Applicant with all the relevant information and supporting documentation required by and in accordance with all Applicable Regulations including, without limitation, adequate explanations in accordance with the Mortgage Credit Directive Order 2015 (if applicable);
(iii) not make any statements or representations to any Applicant which is inconsistent with the terms of Our products or services or any documentation issued by Us or issued on Our behalf. This includes, without limitation, any Illustration. To the extent that You breach this clause You will keep Us indemnified in accordance with clause 11 (indemnity) of this agreement.
3.3 We reserve the right at Our sole discretion to decline all or any Applications and We are not required to give a reason for doing so, unless Applicable Regulations require otherwise.
3.4 We will arrange all processing and administration of Applications.
3.5 All Applications must be submitted with any relevant monies due. We will not accept liability for delays caused by incomplete or inaccurate information provided by You and/or the Applicant. Prior to submission, You must have taken reasonable steps to ensure the Application meets Our current lending criteria (where applicable).
3.6 If You submit an Application which We reasonably suspect to be fraudulent, We will temporarily remove You from Our Panel, until an investigation into the matter has been concluded. If following the investigation, it is found that You knowingly submitted the fraudulent Application, We will permanently remove You from Our Panel and immediately inform the relevant Regulator and other relevant authorities.
4. Society’s Commitment to Intermediaries
4.1 As part of Our commitment to consistently provide You with an outstanding level of service, the Society undertakes to do the following:
(i) to process all documents received both promptly and thoroughly;
(ii) to pay Your procuration fee on time and without undue delay;
(iii) to ensure that all information/data exchanged as part of these Terms of Business is strictly kept between Us only; and
(iv) to not cross sell, in conjunction with clause 5.3 of these Terms of Business.
5.1 You must either be authorised by the FCA (and the PRA if applicable) for advising on and arranging mortgages and, or for Applications relating to buy to let mortgages, for advising on and arranging consumer buy to let mortgages or be an Appointed Representative of a firm authorised by the FCA (and the PRA if applicable) for conducting such activities and be able to provide (where relevant) the following:
(i) registration under the Data Protection Laws in force at the time; and
(ii) any other licences, registrations, authorisations, and powers that allow You to enter into these Terms of Business and comply with its terms.
5.2 You must notify Us immediately in writing if:
(i) any of Your Permissions are withdrawn;
(ii) You are investigated for any breach of the FSMA;
(iii) Your Permissions with the FCA (and the PRA if applicable) are withdrawn, suspended or terminated;
(iv) You are investigated by any Regulator or subject to any regulatory sanction;
(v) You have ever been de-registered or removed from a lender panel / network or mortgage club / Packager Firm
(vi) You have ever been subject to any disciplinary action of a nature that might impair Your integrity as a broker / intermediary / introducer.
5.3 You shall ensure that the FCA’s principles of treating customers fairly will be followed and upheld at all times.
5.4 You shall be responsible for all Your advertisements and other publicity and must ensure that such advertisements and other publicity are compliant with all applicable legal and regulatory requirements.
5.5 You must have Our written approval before using Our logo, or distributing any advertising, press release or business / marketing literature that refers to Us. If We provide You with Our written approval for the aforementioned usage, it is Your responsibility to check that Your usage falls within the Applicable Regulations in force at the time of usage.
5.6 You undertake to comply with and perform Your duties in accordance with the Bribery Act 2010 and any subsequent successor legislation, as well as any other applicable anti-bribery or anti-corruption laws.
5.7 You will not act or omit to act in any way that will lead to Us being in breach of the Bribery Act 2010 and any subsequent successor legislation, as well as any other applicable anti-bribery or anti-corruption laws.
6. Data Protection Requirements
6.1 You must at all times comply with the requirements of the Data Protection Laws as well as any guidance or codes of practice issued by the Information Commissioner’s Office (ICO). You must ensure that You have the Applicant’s authority to disclose their personal details to Us in any format and that We may lawfully use this data for the purposes of assessing and processing their Application. Your duties under this clause shall survive any termination of these Terms of Business or Your membership of Our Panel.
6.2 Personal Data on Applicants gathered by You and passed to Us, shall be separately owned by each party. For the avoidance of doubt, each party may use the data for such sales and marketing purposes as it considers appropriate. However We will not use the data to market general insurance and protection products specifically to the Applicants though they may receive marketing promotions for these products as part of marketing activities directed to Our customer base as a whole. Both parties will comply at all times with the provisions of the Data Protection Laws with regard to the data, including maintaining appropriate registrations/notifications with the ICO.
6.3 You must take reasonable steps to ensure all documents containing the Applicant’s details are kept secure, including Applications submitted to Us electronically.
7. Procuration Fees
7.1 A procuration fee will be paid following completion of a mortgage transaction in accordance with the scale and application submission route published on Our website and as amended from time to time unless a separate agreement exists for payment at a different rate.
7.2 We will cease making payments to You or Your appointed agent (i.e. Packager Partner Firm(s) or Mortgage Club(s)) if We are notified by You or Your appointed agent in writing or it is reasonable to infer that You are no longer validly acting on behalf of the Applicant.
7.3 You or your appointed agent will reimburse Us forthwith upon demand for any payments made:
(i) by Us to You or Your appointed agent in error (and You or Your appointed agent shall promptly notify Us once You become aware of this); or
(ii) by Us which relates to any Application in respect of which You or Your appointed agent are materially in breach of these Terms of Business or where the Application is fraudulent.
7.4 We reserve the right to vary Our procuration fee structure at any time and without notice to You.
8.1 Either party may terminate these Terms of Business by giving one month’s written notice to the other.
8.2 Without limiting Our other rights or remedies, We may terminate these Terms of Business with immediate effect by giving notice to You if:
(i) there is any misconduct by You, any of Your directors or partners, or any person or body for which You are responsible which is or could reasonable be viewed as prejudicial to Our business or reputation;
(ii) You cease to hold the necessary Permissions for the purposes of these Terms of Business;
(iii) You commit a material or persistent breach of these Terms of Business and You (if such a breach is remediable) fail to remedy that breach within 14 days of receipt of notice of the breach;
(iv) You do not place any new Applications with Us during any 12 month period;
(v) You cease to be appropriately insured (or fail to provide Us with evidence of annual renewal upon request);
(vi) You are declared bankrupt or subject to a financial arrangement with Your creditors that We are of the view compromises these Terms of Business;
(vii) We become aware that Your regulated status with the FCA/PRA has been ended (for whatever reason) or if You become subject to regulatory sanction;
(viii) You breach the conditions of use of Our mortgage application system or any other terms of these Terms of Business;
(ix) You or any person or body for which You are responsible or acting on your behalf, are in breach of the Bribery Act 2010 or any other applicable anti-bribery or anti-corruption laws;
(x) We consider that You have abused the privilege of being Our Intermediary; or
(xi) We have any other business reason to cancel any or all Intermediary registrations.
8.3 Any termination of these Terms of Business will not affect any accrued rights and liabilities of either party and clauses 2, 3, 4, 5, 8, 9, 10, 11, 12, 13 and 22 shall continue to apply notwithstanding the termination of these Terms of Business. In the event of termination You shall use all reasonable endeavours to ensure that all pending Applications and matters in progress resulting from the submission of Applications are immediately transferred back to Us or to such other party as We may specify.
9. Limitation of Liability
9.1 Nothing in these Terms of Business shall exclude or limit, our liability, where such exclusion or limitation would not be lawful, for;
(a) Our negligence or the negligence of Our employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
9.2 Subject to the provisions in clause 9.1 above, We shall not be liable to You for:
(i) any losses incurred by You due to Your relationship with any Applicant;
(ii) any losses which may be incurred by You not as a direct result of Our acts or omissions;
(iii) any loss or damage which may be incurred by You as a result of:
(a) any reliance placed by You on the completeness, accuracy or existence of any information about Our products or services issued by Us from time to time;
(b) any changes which We may make to the products or services offered to Applicants;
(c) the deletion, corruption or failure to store any content and other communications data maintained or transmitted by or through Your use of the Society electronic systems (included but not limited to Our database, website and any other Society electronic system)
(d) Your failure to provide Us with complete and accurate information; or
(e) Your failure to keep Yours or Our information where it relates to a mortgage application, secure and confidential.
9.3 The limitations on Our liability to You in clause 9.2 above shall apply whether or not We have been advised of or should have been aware of the possibility of any such losses arising.
9.4 Subject to clauses 9.1 and 9.2 Our total liability to You in respect of any and all losses arising under or in connection with these Terms of Business shall not exceed the amount of the procuration fees paid by Us to You under these Terms of Business in connection with the submission of Applications.
10. Review and Auditing
10.1 In order to review Your compliance with these Terms of Business or to facilitate the meeting of Our obligations under the Applicable Regulations, You shall:
(i) be readily available for meetings with Us as reasonably requested;
(ii) give Us access to any records, files, tapes, computer systems and any other relevant information which are within Your possession, knowledge or control and provide any facilities which We may reasonably request;
(iii) provide Us with and permit Us to copy specified documents, files, tapes, computer data or other material in the Your possession or control as reasonably requested; and
(iv) print information in Your possession or control which is held on computer or on microfilm or otherwise convert it into a readily legible document or any other record which We may reasonably request;
(v) permit Us and / or persons appointed by Us to have access during reasonable business hours to any of Your business premises; or
(vi) ensure that Our auditors, upon reasonable notice, have a right of access at all times to Your records and are entitled to require from You such information and explanations as the auditors reasonably consider necessary for the performance of their duties as auditors.
You shall keep Us indemnified in full against all costs, expenses, damages and losses (whether direct or indirect) including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Us or any of Our respective directors, officers, agents, employees, members and successors in interest as a result of or in connection with any negligence, fraud or breach by You, Your employees, Your agents or Your subcontractors of these Terms of Business
Subject to these Terms of Business, a party ('Receiving Party') shall keep in strict confidence all technical or commercial know-how, specifications, customer information, financial information, risk information, processes or initiatives which are of a confidential nature and have been disclosed to or otherwise obtained by the Receiving Party by the other party ('Disclosing Party'), its employees, agents or subcontractors. This includes any other confidential information concerning the Disclosing Party’s business or its products and / or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors solely and specifically for the purpose of discharging the Receiving Party’s obligations under these Terms of Business. In addition the Disclosing Party shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This confidentiality clause shall survive termination of these Terms of Business.
13. Insurance Cover
You must hold and maintain professional indemnity insurance cover of an amount equal to that which is required by the FCA Handbook. This is intended to cover any liability You may incur under these Terms of Business. On Our request, You shall produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of such insurance.
14. Non-existence of Partnership, Agency or Joint Venture
Nothing in these Terms of Business is intended to or shall be deemed to establish any partnership or joint venture between any of the parties, constitute any party the agent of another party or authorise any party to make or enter into any commitments for or on behalf of any other party.
15. Entire Agreement
These Terms of Business constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral.
16. Waiver Rights
No failure or delay by a party to exercise any right or remedy provided under these Terms of Business or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of these Terms of Business is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of these Terms of Business.
18. Variation of Terms
We may alter these Terms of Business at any time by posting an amended copy of these Terms of Business on Our intermediary website(s) without prior notification to the Intermediary. By submitting business to Us, the Intermediary accepts the most recent version of these Terms of Business as available on Our intermediary website(s).
19. Third Party Rights
A person who is not a party to these Terms of Business shall not have any rights, under the Contracts (Rights of Third Parties) Act 1999, to enforce any term of these Terms of Business.
20. Force Majeure
Neither party shall be in breach of these Terms of Business nor liable for delay in performing or failure to perform any of its obligations under these Terms of Business if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Any notice given to a party under or in connection with these Terms of Business shall be in writing and shall be:
(i) delivered by hand or first / second-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); or
(ii) sent by e-mail to the e-mail address as notified by one party to the other party from time to time.
22. Assignment/Transfer and Associated Matters
22.1 You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of Your rights and obligations under these Terms of Business.
22.2 We may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of Our rights and obligations under these Terms of Business.
23. Governing Law and Jurisdiction
These Terms of Business and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.