INTERMEDIARY AGREEMENT – TERMS & CONDITIONS OF SERVICE
INTERMEDIARY AGREEMENT – TERMS & CONDITIONS OF SERVICE
INTERMEDIARY AGREEMENT 01/10/2016 (updated 07/12/2017)
- Agreement overview
- Parties to this agreement
- Responsibility for suitable advice
- Treating Customers Fairly
- Obligations – both parties
- Obligations – Black Book Finance
- Obligations – Intermediary
- Multiple users of Intermediaries account
- Cross selling & ownership of client
- Third Parties
- FCA permissions
- Data protection & management
- Indemnity & liability limits
- Force majeure
- Law & jurisdiction
- Glossary of terms
- AGREEMENT OVERVIEW
This agreement applies to Intermediaries registering with Black Book Finance Ltd for the purpose of submitting enquiries or applications via our website or any other means.
- PARTIES TO THIS AGREEMENT
2.1 Black Book Finance Ltd (“Black Book”) Registered Office: 73 Cornhill, London, EC3V 3QQ. Registered in England, Company Number 10121549 Authorised and regulated by the FCA, Authorisation number: FRN 758372.
2.2 The Intermediary (“Intermediary”) who will submit or refer enquiries or loan applications to Black Book and agrees to be bound by the Terms & Conditions of this agreement.
PRODUCTS & SERVICES
The products available to the Intermediary by way of this agreement are:
- Regulated and non-regulated First Charge Mortgages – Black Book may act as a Packager or a Club, or accept Referrals
- Regulated and non-regulated Second Charge Mortgages– Black Book may act as a Packager, Club or accept or make Referrals
- Non-regulated Commercial Mortgages – Black Book may act as a Packager, a Club or accept or make Referrals
- Non-regulated Development Finance – Black Book may act as a Packager, a Club or accept or make Referrals
- Regulated and non-regulated Asset Finance – Black Book may act as a Packager, a Club or accept or make Referrals
- Non-regulated Invoice Finance – Black Book may act as a Packager, a Club or accept or make Referrals
- Non-regulated specialised ‘Wrap’ Services – Black Book may refer enquiries received on to approved regulated and/or non-regulated third parties
- RESPONSIBILITY FOR SUITABLE ADVICE
3.1 We accept business from Intermediaries via 3 channels:
(a) Referral – Black Book selling. The Intermediary supplies the enquiry and Black Book takes responsibility for the sale of the product including advice where appropriate as well as functioning as a packager, where appropriate.
(b) Packager – Intermediary selling. The Intermediary supplies the enquiry and takes responsibility for the sale of the product and advice where appropriate. Black Book functions only as a packager offering a business to business service to the Intermediary.
(c) Club – Intermediary Selling. Black Book provides a product placement service. The intermediary deals direct with the supplier or lender through Black Book’s arrangements, where applicable, and is paid directly by the supplier or lender. The Intermediary is responsible for the advice, packaging, meeting all current legal requirements and sale of the product sold.
3.2 For the avoidance of doubt suitable advice is deemed to mean:
3.2.1 Recommendation of a product which is available to the client, having taken all relevant and supplied information into account, and which can clearly be shown to be in the client’s best interests.
3.2.2 Recommendation of a product which embraces & complies with the spirit and explicit terms/conditions of applicable legislation featured within MCOB, TCF and the MCD.
3.2.3 Recommendation of a product which does not result in client detriment when compared with:
(a) An alternative product available to the client
(b) Deciding not to proceed with the loan
3.3 When Black Book is acting as Packager, the responsibility for the sale, meeting all legal requirements to include AML/Terrorist Funding, Criminal Finances Act 2017, GDPR and UK Data Protection Laws, and the suitability of the product sold, lies entirely with the Intermediary. Black Book will use its best endeavors to offer and package products from its panel which best meet the Intermediary’s requirements, but accepts no liability for the suitability of the product or makes any guarantees that alternative or cheaper products are, or are not, available.
3.4 When Black Book is taking responsibility for the sale of a regulated second charge product, its scope shall be limited to second charges only. Any Intermediary authorised by the FCA to advise on regulated first charge mortgages shall remain responsible for ensuring that more suitable first charge alternatives are not available from its panel of lenders. The Intermediary will ask Black Book to cancel its application at any time during the process and will revert to a first mortgage application or other solution should the Intermediary deem a First Charge to provide a more suitable outcome for the borrowers.
- TREATING CUSTOMERS FAIRLY
4.1 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:
- Consumers can be confident that they are dealing with firms where the fair treatment of customers is central to the corporate culture.
- Products and services marketed and sold in the retail market are designed to meet the needs of identified consumer groups and are targeted accordingly.
- Consumers are provided with clear information and are kept appropriately informed before, during and after the point of sale.
- Where consumers receive advice, the advice is suitable and takes account of their needs and circumstances.
- 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.
- Consumers do not face unreasonable post-sale barriers imposed by firms to change product, switch provider, submit a claim or make a complaint.
- OBLIGATIONS – both parties Each party agrees and warrants:
5.1. It will obtain and maintain in force all appropriate authorisations, consents, licences, registrations & permissions needed to conduct its business in a lawful manner. To include without limitation FCA permissions and obligations under current UK Data Protection Law, the Criminal Finances Act 2017, the GDPR and all subsequent updates.
5.2 Should it fail to maintain all authorisations, consents, licences, registrations & permissions, or have grounds to believe they may be withdrawn or not renewed, or are subject to regulatory review, it will promptly advise the other party.
- BLACK BOOK OBLIGATIONS – We will:
6.1 Allocate sufficient resources to achieve & maintain service levels at a standard expected by professionals within the financial services sector.
6.2 Use all reasonable endeavors to provide the loan or service being applied for, whilst acting in accordance with the terms and spirit of this agreement at all times.
6.3 Black Book retains absolute discretion as to whether to allow an Intermediary to register and benefit from the products & services featured in this agreement.
- INTERMEDIARIES OBLIGATIONS – The Intermediary will:
7.1 Hold all necessary FCA permissions for the submission, sale & advice of regulated products.
7.2 Comply with all relevant regulations as featured in MCOB and the MCD for the sale and promotion of regulated products.
7.3 Manage application data in accordance with the requirements of the current DPA and GDPR 2018.
7.4 Only provide accurate information in support of any application to the best knowledge of the Intermediary
- MULTIPLE USERS OF INTERMEDIARIES ACCOUNT
8.1 Where multiple users of one Intermediary account are required clear definition of the status and authority of the user will be needed. These will typically be: –
Principal – usually the business owner and the person holding FCA permissions.
Appointed Representative – an employee or sub-contract worker of the Principal using the Principal’s permissions.
Agent – typically of self-employed status with a commercial relationship with the Principal and using the Principal’s permissions.
8.2 The formal relationship being established by this agreement is between Black Book and the Principal. The products & services on offer may be made available to a Principal’s Appointed Representative or Agent on the strict understanding that the following conditions are met:
8.3 The requirements of MCOB and to ensure the wider FCA principles are met in full in regard to all regulated activity. The Principal takes full responsibility for the advice and actions of the Appointed Representative or Agent, and ensures compliance with MCOB, UK legislation and the MCD rules at all times.
8.4 Remuneration will be paid directly to the Principal unless explicitly agreed otherwise
9.1 Our products and services are available to Intermediaries working via a network through the network’s dedicated portal. Submissions of this type will automatically receive the terms and conditions applicable to the network. Intermediaries via networks will typically be from Appointed Representatives (AR) making use of the networks FCA permissions and compliance regime. Commissions will be as provided to the AR by the network
- CROSS SELLING & OWNERSHIP OF CLIENT
10.1 Black Book 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
(ii) A bridging loan
(iii) An unregulated product
This would be done only with the explicit prior approval and acceptance by the Intermediary. Other remuneration terms would apply and be negotiated on a case by case basis.
10.2 On-going ownership of the client is considered to be with the Intermediary. All requests for additional finance, products or services post completion of the loan would be directed to the Intermediary.
11.1 Remuneration of registered Intermediaries varies by product range and the service offered. There will also be occasions where the standard remuneration differs to accommodate unusual circumstances. Any non-standard commissions will be confirmed with the intermediary in advance.
11.2.1 Second Charge Term Loans. The Intermediary’s remuneration does not differ dependent on who is giving the advice – Black Book or the Intermediary. However for clarity the remuneration for intermediaries is as follows:
11.2.2 Referral – Black Book Selling. Black Book will charge a fee (Black Book fee) which includes normal third party costs including mortgage references, consent, legal searches and credit reports. The Black Book fee does not include valuation costs (if required) which borrowers can add to the loan or pay separately. Where the client would prefer not to pay the valuation cost themselves, an alternative Black Book fee will be charged based on the anticipated valuation of the property. The Black Book fee will be made clear to intermediaries and borrowers throughout the process. Intermediaries may also charge a fee (Intermediary fee) which can be added to the loan or paid by the borrowers separately. In each case Black Book will collect the Intermediary fee and pass it to the intermediary. Under no circumstances can the intermediary charge a separate fee. In the interests of TCF and preventing disproportional fee charging the intermediary fee shall not exceed the Black Book fee. In addition Black Book will pay the Intermediary 50% of any commission it receives from the lender in relation to the loan
11.2.3 Packaging – Intermediary selling. Black Book will charge a fee (Black Book fee) which includes normal third party costs including mortgage references, consent, legal searches and credit reports. Black Book’s fee does not include valuation costs, if required, which borrowers can add to the loan or pay separately. Black Book’s fee will be made clear to intermediaries and borrowers throughout the process. Intermediaries may also charge a fee (Intermediary fee) which can be added to the loan or paid by the borrowers separately. In each case Black Book will collect the Intermediary fee and pass it to the intermediary. Under no circumstances can the intermediary charge a separate fee. In the interests of TCF and preventing disproportional fee charging the intermediary fee shall not exceed the Black Book fee. In addition Black Book will pay the Intermediary 50% of any commission it receives from the lender in relation to the loan application
11.2.4 Club –Intermediary selling. Black Book aims to pay intermediaries the same amount of commission and fees he / she would get if by dealing direct with the lender. Any exception to this will be notified to the intermediary before proceeding.
11.2.5 Fee administration – applicable to Second Charge referral and packaging only.
Fees added to the loan – will be deducted from the loan by the lender and sent directly to Black Book. The Intermediary’s fee would be dispersed within 5 working days of receipt by Black Book.
Valuation fees (paid upfront / not added to the loan) – are payable at the point of the valuation being instructed.
Broker fees (paid upfront / not added to the loan) – are payable at the point of the binding offer being produced and are 100% refundable if the applicant chooses not to proceed to completion.
The Intermediary would be paid within 5 working days of Black Book being in receipt of cleared funds or the loan completing – whichever is the latest.
11.3 Short Term Bridging / Development Loans & all Commercial Loans. The introducing Intermediary will receive 50% of the broker fee and lender commission after deduction of any third party costs incurred by Black Book.
11.4 First Charge Mortgages
11.4.1 Packaging – Intermediary selling. The introducing Intermediary will receive 50% of the lender commission after deduction of any third party costs incurred by Black Book. Intermediaries may charge their own fees or share in the fees charged by Black Book. This will be discussed and made clear to the intermediary at the outset
11.4.2 Club –Intermediary selling. Black Book aims to pay intermediaries the same amount of commission and fees he / she would get if by dealing direct with the lender. Any exception to this will be notified to the intermediary before proceeding.
11.5 Payment of Commissions
11.5.1 With the exception the club options, Intermediaries agree and authorise Black Book 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, it’s Principal within 5 working days by post or by bank transfer in to a nominated back account.
11.5.2 When using the Club option to place a second or first charge mortgage the intermediary recognises that the lender may pay Black Book an additional commission for providing the placement service and agrees to select Black Book as the payment route in regard to that client application
11.5.3 In the event of a lender clawing back an element of the commission it has paid to Black Book the intermediary agrees to repay its share of the commission to Black Book 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 Black Book and the Intermediary. In the event of non-payment, Black Book 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.
- THIRD PARTIES
12.1 Intermediaries authorise Black Book to pass details of enquiries to third party lenders and intermediaries on its panel at Black Book’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.
12.2 The Intermediary warrants that it has, on every occasion, obtained appropriate express permission for client details to be passed to Black Book and its panel of third party providers.
12.3 Where an enquiry is referred by Black Book to a third party which offers products not covered in this agreement, such a 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.
- FCA PERMISSIONS
13.1 All Black Book Intermediaries must hold valid FCA permissions which are appropriate for the business to be transacted and the Intermediary’s part in the transaction. Black Book will take steps to evidence this at the outset. The Intermediary must inform Black Book immediately in the event that permissions held are revoked, expire or in some other way become or threaten to become invalid.
13.2 Each party will ensure that it’s conduct is limited to the permissions it holds.
- DATA PROTECTION & MANAGEMENT
14.1 Black Book will become the Data Controller (DPA) responsible for client data received for the purpose of pursuing a loan under the terms of this agreement. This in no way affects the Intermediaries own responsibilities under the DPA and GDPR.
- INDEMNITY & LIABILITY LIMITS
15.1 The Intermediary indemnifies Black Book 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 its full value.
15.2 Black Book 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.
15.3 Nothing in this agreement shall limit or exclude Black Book’s liability for an act resulting in harm which may not be lawfully excluded. For example negligence, corruption or fraud.
- FORCE MAJEURE
16.1 Any party that is subject to a Force Majeure event shall not be in breach of this agreement provided that:
16.2 It promptly issues an event notice in writing of the nature & extent of the event causing the failure or delay in performance.
16.3 It has used all reasonable endeavors to mitigate the effect of the event and to continue with its obligations as defined by this agreement as soon as practicably possible
16.4 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.
17.1 Either party may terminate this agreement immediately in the event of a material breach of its terms & conditions.
17.2 Either party may terminate this agreement without reason by giving 7 day’s notice in writing to the other party.
17.3 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.
17.4 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.
17.5 In the event of termination Intermediary pipeline remuneration on applications being processed in accordance with the terms & conditions of this agreement will be honoured.
17.6 Termination of any kind by either party must be communicated in writing.
17.7 Termination of this agreement shall not affect the rights & remedies of either party accrued up to the date of termination.
17.8 All provisions expressed or intended to survive termination shall continue in full force & effect.
18.1 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 its obligations under this agreement.
18.2 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 18.1 concerning the business affairs, customers and suppliers of the other party.
18.3 Each party may waive the obligations of clause 18.2 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.
19.1 Black Book 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:
19.2 The amended version of the agreement being published on Black Book’s web site www.blackbookfinance..co.uk
19.3 Continued use of the products & services available under this agreement, following the issue of notice, will be deemed to be acceptance by the Intermediary.
- LAW & JURISDICTION
20.1 Any dispute or claim arising out of this agreement shall be governed in accordance with the law of England & Wales.
- GLOSSARY OF TERMS
Appointed Representative – A Principal’s employee or member, sub contract worker or agent reliant on use of the Representative Principal’s FCA permissions.
Agent Of – self-employed contractor status with a commercial relationship with the Principal, reliant contractually on use of the Principal’s FCA permissions.
DPA – The Data Protection Act 1998 and any update of it or future UK Data Protection Legislation.
GDPR – The new international data protection regulations that take effect on 25th May 2018.
Commencement Date – The date that you click to accept the terms and conditions of the agreement.
Confidential – All secret or confidential information (including commercial; financial; marketing Information & 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
Directly Authorised – A person holding FCA permission for regulated activity Authorised by the FCA – The Financial Conduct Authority, 25 The North Colonnade, Canary Wharf, London, E14 5HS.
Force Majeure – Any event outside the reasonable control of either party affecting its ability to perform any of its obligations.
Intermediary – Broker, financial adviser, member or any authorised user of the service. Each of these definitions meaning the same.
MCOB – Mortgage Conduct of Business sourcebook, part of the FCA handbook