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Index
1.
Agreement overview
2.
Parties to this agreement
3.
Products & services
4.
Responsibility for suitable advice
5.
Treating Customers Fairly
6.
Obligations – both parties
7.
Obligations - Promise Solutions
8.
Obligations - Intermediary
– obligations
9.
Unregulated Introducers
10.
Networks
11.
Cross selling & ownership of client
12.
Remuneration
13.
Third Parties
14.
FCA permissions
15.
Data protection & management
16.
Indemnity & liability limits
17.
Force majeure
18.
Termination
19.
Confidentiality
20.
Variation
21.
Law & jurisdiction
22.
Glossary of terms
1.
AGREEMENT OVERVIEW
This
agreement applies to Intermediaries and introducers registering with Promise
Solutions for the purpose of researching and being updated about new products
and services with a view to submitting applications via our web based underwriting
& sourcing system or any other means.
2.
PARTIES TO THIS AGREEMENT
2.1
Party 1
Promise Solutions ( Trading as
Promise Money)
2nd floor Fullard House,
WestMidlands. WV11 3QG.
Registered in
Authorised and regulated by the FCA
Authorisation number: 681423
Referred to in this agreement as Promise
Party 2
You. The Intermediary who will
submit or refer loan applications to Promise and agrees to be bound by the
terms & conditions of this agreement.
Referred to in this agreement as Intermediary
3.
PRODUCTS & SERVICES
The products available to the
Intermediary by way of this agreement are:
I. Regulated mortgages, second charge
loans and bridging loans – Promise may
act as a Packager, Club or accept Referrals at its discretion
II. Non regulated
mortgages, second charge loans, bridging loans, commercial mortgages,
development loans and business loans – Promise may act as a Packager, a Club or
accept Referrals at its discretion
III Web portals to
submit enquiries and track progress of applications
3.1
Where the intermediary is a member
of a network or club which has agreed with Promise to offer such members a
different range of services to those in this agreement, then the terms of the
agreement between the intermediary and the network or club shall override the
products available in clauses 3 and 12
4.
RESPONSIBILITY FOR SUITABLE ADVICE
4.1
We accept business from
Intermediaries in 3 channels:
(a)
Referral
– Promise selling. The Intermediary supplies the enquiry and Promise takes
responsibility for the sale of the product including advice where appropriate
as well as functioning as a packager.
(b)
Packager
– Intermediary selling. The Intermediary supplies the enquiry and takes
responsibility for the sale of the product and advice where appropriate.
Promise functions only as a packager offering a business to business service to
the Intermediary.
(c)
Club
– Intermediary Selling. Promise provides a product advice a placement service
to the broker. The intermediary deals direct with the lender through Promise’s
club arrangements and is paid direct by the lender. The intermediary is
responsible for all packaging and the sale in regard to the product sold.
4.2
For the avoidance of doubt suitable
advice is deemed to mean:
4.2.1
Recommendation of a product from our
lenders product range, which is available to the client, having taken all
relevant factors in to account which can clearly be shown to be in the client’s
best interests.
4.2.2
Recommendation
of a product which embraces & complies with the spirit and explicit
terms/conditions of applicable legislation featured within MCOB and the MCD.
4.2.3
Recommendation of a product which
does not result in client detriment when compared with:
(a)
An
alternative product from the range available to the client from the brokers
lender panel
(b)
Deciding
not to proceed with the loan
4.3
When
Promise is acting as a packager the responsibility for the sale and suitability
of the product lies entirely with the Intermediary. Promise will use its best
endeavours to offer and package products from its panel which best meet the
Intermediaries requirements but accepts no liability for the suitability of the
product or makes any guarantee that alternative or cheaper products are not
available.
4.4
When
Promise is taking responsibility for the sale of a product, advice will be
given on regulated products as appropriate and in accordance with FCA rules and
guidance. Other non regulated products will be sold on a non advised basis.
4.5
Where an
Intermediary is authorised by the FCA to advise on regulated mortgages and
refers an enquiry to Promise to advise under a reduced scope which solely
offers second charge mortgages, the intermediary remains responsible for
ensuring that more suitable first charge alternatives are not available from
its panel of lenders. The Intermediary will ask Promise to cancel its
application at anytime during the process and will revert to a first mortgage
application or other solution should the Intermediary deem this to provide a
more suitable outcome for the borrowers.
5.
TREATING CUSTOMERS FAIRLY
5.1
Both parties agree to uphold and
apply the spirit & explicit terms/conditions of the principles established
by the FCA known as TCF. For the avoidance of doubt these are:
(i) Consumers can be confident that they
are dealing with firms where the fair treatment of customers is central to the
corporate culture.
(ii)
Products and services marketed and sold in the retail market are
designed to meet the needs of identified consumer groups and are targeted
accordingly.
(iii) Consumers are provided with clear
information and are kept appropriately informed before, during and after the
point of sale.
(iv) Where consumers receive advice, the
advice is suitable and takes account of their circumstances.
(v)
Consumers are provided with products that perform as firms have led them
to expect, and the associated service is of an acceptable standard and as they
have been led to expect.
(vi) Consumers do not face unreasonable
post-sale barriers imposed by firms to change product, switch provider, submit
a claim or make a complaint.
6.
OBLIGATIONS – both parties
Each party agrees and warrants:
6.1.
It will obtain and maintain in force
all authorisations, consents, licences, registrations & permissions needed
to conduct it’s business in a lawful manner. To include without limitation FCA
permissions and obligations under the GDPR.
6.2
Should it fail to maintain all
authorisations, consents, licences, registrations & permissions, or have
grounds to believe they may be withdrawn or not renewed, it will promptly
advise the other party.
7.
PROMISE SOLUTIONS OBLIGATIONS
We will:
7.1
Allow the registered Intermediary a
means of secure access to a website for submissions and support conditional
upon it being used for its intended purpose.
7.2
Allocate sufficient resources to
achieve & maintain service levels at a standard expected by professionals
within the financial services sector.
7.3
Use all reasonable endeavours to
provide the loan / mortgage being applied for, whilst acting in accordance with
the terms and spirit of this agreement at all times.
7.4
Promise Solutions retains absolute
discretion as to whether to allow an Intermediary to register and benefit from
the products & services featured in this agreement.
8.
INTERMEDIARIES OBLIGATIONS
The Intermediary will:
8.1
Use facilities provided by Promise
solely for the purpose for which they are intended and not attempt to copy,
duplicate or reverse engineer any elements of the system.
8.2
Take full responsibility for all users of system who use the
Intermediaries account details.
8.3
Hold all necessary permissions to perform their role,
particularly FCA permissions for acting as a broker in the submission, sale
& advice of regulated products.
8.4
Comply with all relevant regulations
as featured in MCOB and the MCD for the sale and promotion of regulated
products.
8.5
Manage application data in accordance with the requirements
of the GDPR.
8.6
Only provide
accurate information in support of any application to the best knowledge of the
Intermediary
9.
UNREGULATED INTRODUCERS
9.1
Persons or firms not authorised by
the FCA for the sale of regulated mortgages may not engage in the sales process
in regard to such products. The Introducer functions as a referral agent only.
9.1.1
The introducer shall in every case
disclose to a potential borrower that they will receive a commission from
Promise upon completion of any regulated mortgage or loan and the amount of
that remuneration or the basis upon which it is calculated. E.g. in regard to
regulated mortgages 35% of the net fees and lender commission earned by Promise
9.2
For the avoidance of doubt the
introducer will not engage in any of the following activities in regard to any
referral made which results in a regulated product being sold:
9.2.1
Completing application forms on
behalf of the borrower
9.2.2
Advising on the suitability or
features of any regulated product
9.2.3
Acting in any way which could lead a
reasonable borrower to think the introducer was acting in the capacity of a
broker or adviser
9.2.4
Charge the borrower any fees in
regard to a regulated transaction.
9.2.5
Publish advertisements promoting
regulated products which may lead a reasonable borrower to think the introducer
is acting as a broker which is authorised by the FCA to give advice on
regulated mortgages.
10.
NETWORKS
10.1
Our products and services are
available to AR Intermediaries working via network agreements with Promise. Submissions
of this type will be subject to the terms and conditions applicable to the
network agreement and the agreement between the AR and the network. Commissions will be as provided to the AR by
the network and paid as agreed with the network.
10.2
Off panel – AR’s who are not members
of a network on Promise’s panel can access Promise products. The AR shall be
responsible for adherence to any processes or terms imposed on it by the
network. Promise will not be responsible for any consequences of the AR not
following rules or guidance imposed by its network.
11.
CROSS SELLING & OWNERSHIP OF CLIENT
11.1
Promise does not cross sell products
of any description. When the product being applied for is not available, or
unacceptable, it may suggest alternative financial solutions such as:
(i)
A
remortgage from it’s complex mortgage panel
(ii)
A
bridging loan
(iii)
An
unregulated product
This
would only be done with the explicit approval and acceptance of the
Intermediary. Other remuneration terms would apply and be negotiated on a case
by case basis.
11.2
Ongoing ownership of the client is
considered to be with the Intermediary. Requests for additional finance,
products or services post completion of the loan would be directed to the
Intermediary.
12 REMUNERATION
AND CLAWBACK
12.1
Remuneration of registered
Intermediaries varies by product range and the service offered.
12.1.1
Regulated intermediaries and non regulated business - Typically lender commissions are split 50/50 with regulated intermediaries and on non regulated business. Intermediaries can also charge fees subject to limits set out by Promises
12.1.2
Unauthorised Introducers - On unregulated business they will receive a 50/50 share of commissions and can add a fee. On regulated mortgages and secured loans they will typically receive 35% of the fees and commission Promise receives. For the
12.1.3
Fees are agreed on a case by case
basis and together with commissions are confirmed at the outset of each
application.
12.2
Payment of commissions
12.2.1
With the exception the
club options, Intermediaries agree and authorise Promise to receive all other
fees or lender commissions relating to transactions under this agreement and to
pass the agreed share on to the Intermediary or, in the case of appointed representatives
of approved networks it’s Principal by
post or by bank transfer in to a nominated back account.
12.2.2
When using the Club option to place
a second or first charge mortgage the intermediary recognises that the lender
may pay Promise an additional commission for providing the placement service
and agrees to select Promise as the payment route in regard to that client
application
In the event of a lender clawing
back an element of the commission it has paid to Promise the intermediary
agrees to repay its share of the commission to Promise within 10 working days.
Should a partial refund of commission be required the amount the intermediary
shall repay will be pro rata in the same ratios that the commission was
originally shared between Promise and the Intermediary.
In the event of non payment Promise
shall be entitled to charge interest on the amount at Barclays Base Rate plus
7% and offset the debt against other commissions due to the Intermediary.
13. THIRD PARTIES
13.1
Intermediaries
authorise Promise to pass details of enquiries to third party lenders on its
panel at Promise’s discretion for the purpose of researching possible
solutions. No contact will be made with Intermediary’s clients without the
express permission of the Intermediary.
13.2
The
Intermediary warrants that it has on every occasion obtained appropriate
permission for client details to be passed to Promise and it’s panel of third
party providers in accordance with GDPR.
13.3
Where an enquiry is referred by
Promise to a third party which offers products not covered in this agreement,
such referral would only be made with the explicit agreement of the introducing
intermediary. Remuneration would be bespoke and agreed on a case by case basis.
14.
FCA PERMISSIONS
14.1
All Promise Intermediaries must hold
valid FCA permission which is appropriate for the business to be transacted and
the Intermediary’s part in the transaction. Promise will take steps to evidence
this at the outset. The Intermediary must inform Promise immediately in the
event that permissions held are revoked, expire or in some other way become or
threaten to become invalid.
14.2
Each party will ensure that it’s
conduct is limited to the permissions it holds and specifically introducers who
are not authorised by the FCA will not play any active part in any applications
for regulated mortgages and abide by the requirements of clause 9.
15. DATA PROTECTION & MANAGEMENT
15.1
When you submit an enquiry or
application to us you do so as a controller of the personal data which you have
collected. You are responsible for the processing of that personal data and
ensuring that such processing is undertaken in accordance with the requirements
of all current GDPR.
15.2
Before sharing the data with us you
shall ensure that you have obtained any necessary consent and/or other lawful
purpose for transferring the personal data to us, and have complied with all
other necessary lawful requirements to enable the lawful transfer of the
personal data to us. This includes providing us with the applicants email
address in order to provide our privacy statement. We will receive the personal
data as a controller or processor dependent on who is taking responsibility for
Advice.
15.3
Each party shall be separately and
independently responsible under GDPR for any personal data in respect of which
each party is a controller or processor while the personal data is in their
possession or under their control. The parties shall, where necessary,
cooperate with, and provide reasonable assistance to one another in order to
enable each party to comply with their obligations under GDPR, including (but
not limited to):
-
making available to the other party in a timely manner any
correspondence from any data subjects or any relevant supervisory authority in
relation to the processing of personal data by that party (to the extent that
this is legally permitted)
-
Informing each other of any Data Security Incident which may impact the
other party, in as far as such Data Security Incident involves the personal
data which is processed in relation to this agreement
15.4
You will not divulge to any third
party any documents or materials of any kind containing information we have
identified as confidential information or which relates to our business or
affairs or those of any of our subsidiaries or affiliates or associated
companies.
15.5
Some or all of the information
supplied to us in connection with an application will be held on computer
and/or paper and will comprise personal data. Unless required to do so by law,
we will not disclose such information to anyone else other than our agents or
other third parties to assist in the provision of the services governed by this
agreement.
15.6
Each party will inform the other in
writing if in reasonable opinion there has been a failure to comply with any
provision of applicable GDPR.
15.7
Any breach of clause 15.6 by you
will be a material breach of this Agreement which is not capable of being
remedied, irrespective of whether any financial loss or reputational damage
arises, and irrespective of the level of any financial loss or deprivation of
benefit arising, as a consequence of such a breach.
15.8
Please note that telephone calls are
recorded for security and training purposes.
16. INDEMNITY & LIABILITY LIMITS
16.1
The Intermediary indemnifies Promise
Solutions from any cost, loss, damage or liability incurred as a result of a
direct or indirect breach of this agreement by the Intermediary, up to it’s
full value.
16.2
Promise Solutions shall have no
liability under any circumstances for a breach by the Intermediary of CONC,
MCOB or any legislation applicable to the provision of the products &
services covered by this agreement.
16.3
Nothing in this agreement shall
limit or exclude Promise Solutions liability for an act resulting in harm which
may not be lawfully excluded. For example negligence, corruption or fraud.
17. FORCE MAJEURE
17.1
Any party that is subject to a Force
Majeure event shall not be in breach of this agreement provided that:
17.2
It promptly issues an event notice
in writing of the nature & extent of the event causing the failure or delay
in performance.
17.3
It has used all reasonable
endeavours to mitigate the effect of the event and to continue with it’s
obligations as defined by this agreement as soon as practicably possible
17.4
Both parties seek to minimise the
detrimental effect of an event and meet within 7 days from the delivery of an
event notice to agree on suitable recovery action.
18. TERMINATION
18.1
Either party may terminate this
agreement immediately in the event of a material breach of it’s terms &
conditions.
18.2
Either party may terminate this
agreement without reason by giving 7 days notice in writing to the other party.
18.3
The agreement will end with
immediate effect should the Intermediary be considered declared insolvent by
way of formal action, or the firm possibility of formal action designed to
pursue insolvency.
18.4
The agreement will end with
immediate effect should the Intermediary be considered untrustworthy by virtue
of formal regulatory body action, the threat of such action or abuse of any of
the terms & conditions of this agreement.
18.5
In the event of termination
Intermediary pipeline remuneration on applications being processed in
accordance with the terms & conditions of this agreement will be honoured.
18.6
Termination of any kind by either
party must be communicated in writing.
18.7
Termination of this agreement shall
not affect the rights & remedies of either party accrued up to the date of
termination.
18.8
All provisions expressed or intended
to survive termination shall continue in full force & effect.
19. CONFIDENTIALITY
19.1
Each party undertakes that it may
disclose confidential information arising from the relationship created by this
agreement to employees, officers, representatives or advisers of it only for
the purposes of carrying out it’s obligations under this agreement.
19.2
Each party undertakes to the other
that it shall not at any time during the term of the agreement, or for a period
of 5 years following termination of the agreement, disclose to any person or
body other than those described in 19.1 concerning the
business affairs, customers and suppliers of the other party.
19.3
Each party may waive the obligations
of clause 19.2 only in exceptional circumstances for example a legitimate
request by a court of law, government or regulatory body. The provisions of the
DPA will apply at all times.
20. VARIATION
20.1
Promise
is entitled to amend the terms & conditions of this agreement at any time.
Advance notice of not less than 1 week, will be given. The amendment will be
communicated & achieved by way of:
20.2
The amended version of the agreement
being published on Promise Solutions web site www.promisesolutions.co.uk
20.3
Continued use of the products &
services available under this agreement, following the issue of notice, will be
deemed to be acceptance by the Intermediary.
21. LAW & JURISDICTION
21.1
Any dispute or claim arising out of
this agreement shall be governed in accordance with the law of England &
Wales.
22. GLOSSARY OF
TERMS