TERMS OF BUSINESS FOR INTERMEDIARIES

Transcription

1 TERMS OF BUSINESS FOR INTERMEDIARIES These terms of business (Terms) set out the terms upon which State Bank of India (UK) accepts mortgage business (Business) introduced to it by an Intermediary (referred to hereafter as you/your). The obligations placed on you by these Terms are owed to State Bank of India (UK) (Company Registration Number FC004460) whose branch address in the UK is situated at King Street, London, EC2V 8EA) (referred to hereafter as we/us/our). 1. DEFINITIONS AND INTERPRETATION 1.1 In these Terms, unless the content requires otherwise, the following expressions have the following meanings: Applicable Regulations means all laws, regulations, orders, directions from Regulators and industry codes of practice applicable to the marketing, selling and/or variation of mortgages and related products in the UK including, but not limited, to FSMA, the FCA Handbook, the DPA, the Money Laundering Regulations 2007 and the Joint Money Laundering Steering Group Prevention of Money Laundering Guidance Notes for the Financial Sector 2007, the Terrorism Act 2000, the Proceeds of Crime Act 2002 and the Bribery Act Application means an application for a Mortgage, which has been completed by the Borrower and sent to us for initial vetting and processing in accordance with these Terms. Appointed Representative has the meaning given to it by Section 39(2) of FSMA. Associated Person means in relation to any entity, a person who (by reference to all relevant circumstances) performs services for or on behalf of that entity in any capacity and including, without limitation, employees, agents, subsidiaries, representatives and subcontractors. Borrower means the person or persons who are either seeking to apply, or applying to enter into a Mortgage, or have entered into a Mortgage, which has been introduced to us by you. DPA means the Data Protection Act 1998 and all relevant regulations, codes of practice and guidance issued by the Office of Information Commissioner in connection with that Act. FCA means the Financial Conduct Authority (and any successor of the FCA). FCA Handbook means the FCA s handbook of rules and guidance made pursuant to FSMA. FSMA means the Financial Services and Markets Act Intermediary means any person introducing Business to us, either directly or via an Appointed Representative, in accordance with these Terms. Key Features Illustration means the key facts illustration document produced in accordance with FCA s requirements.

2 Lending Policy means any policy we may have on acceptance of mortgage business that we provide to you, which we may vary and/or reissue from time to time; MCOB means the Mortgages and Home Finance: Conduct of Business sourcebook in the FCA Handbook. Mortgage means a loan secured by a mortgage or, in Scotland, by a standard security, offered by us pursuant to a Mortgage Offer. Mortgage Offer means a written offer of a Mortgage issued by us pursuant to these Terms. Regulator means the FCA, Prudential Regulation Authority, the Office of Fair Trading and any other enforcement authority or regulator of activities carried on by you or us. Regulated Mortgage means a loan which satisfies the criteria of a regulated mortgage contract set out in s61(3) of the Regulated Activities Order. Regulated Activities Order means the Financial Services and Markets Act 2000 (Regulated Activities) Order Services means the services provided by you whereby you shall from time to time introduce Borrowers to us and we shall seek to provide a Mortgage to such Borrowers. 1.2 In these Terms any reference to a statute or statutory instrument or provision thereof includes any amendment or re-enactment of it for the time being in force, and all instruments, orders, notices, regulations, directions, byelaws, permissions and plans for the time being made, issued or given under it, or deriving validity from it. 1.3 Words promoting the singular shall include the plural and words importing one gender shall include the other genders. 1.4 References to a person shall be construed so as to include any individual, firm, company, agency or any joint venture, association or partnership (whether or not having a separate legal personality). 1.5 A reference to these Terms or any other agreement or document shall be construed as a reference to it as amended, varied, modified or supplemented from time to time and shall include reference to any document which amends, varies, modifies or supplements it, or is entered into, made or given pursuant to, or in accordance with, its terms. 1.6 A reference to a party means a party to these Terms and parties shall be construed accordingly. 1.7 The headings in these Terms shall not affect its construction or interpretation. 1.8 Nothing in these Terms should be construed as indicating or giving rise to a joint venture or partnership. 2 THE RELATIONSHIP 2.1 Submission of these Terms to us signed by you constitutes your agreement to act in accordance with and be bound by these Terms. 2.2 In respect of an Intermediary who is the principal of an Appointed Representative, the Intermediary undertakes to ensure that the Appointed Representative introduces Business to us in accordance with these Terms.

3 2.3 We will only accept Business that was submitted in accordance with these Terms and by an Intermediary who is appropriately authorised by the FCA and who otherwise holds all relevant consents, permissions, registrations or licences for the purpose of carrying out its business in accordance with these Terms. In the case of an Intermediary who introduces Business to us via an Appointed Representative, we will only accept Business from such an Appointed Representative so long as it remains an Appointed Representative of the Intermediary. 2.4 The Intermediary is presumed to act on behalf of the Borrower when introducing Business to us and throughout the duration of the Intermediary s relationship with us as governed by these Terms unless and until such time as we are advised otherwise. 3 SUPPLY OF SERVICES 3.1 You shall submit an Application to us and provide the Services in accordance with these Terms. You agree to provide the Services to us: in accordance with Applicable Regulations and the Lending Policy; using all reasonable skill, care and efficiency of a diligent provider of services of a similar nature and in accordance with normal good industry practice and standards; to a standard and in a manner which is at least as favourable as are carried out for mortgage advances to be originated by other lenders; and using appropriately skilled, competent, efficient, experienced and sufficient numbers of staff. 3.2 You will take all appropriate steps to ensure employees and third parties contracted by you to provide Services are adequately vetted in accordance with good industry standard including undertaking, as a minimum, background checks and verifying qualifications. 3.3 You will use such standard documentation as we approve in writing or as set out in our Lending Policy. No other forms may be used by you other than as agreed in writing between us from time to time. 3.4 We may, in our absolute discretion and for any reason refuse to accept the Application from you. 4 KNOWING YOUR CUSTOMER (KYC) 4.1 Before submitting an Application to us you will verify the Borrower s identity in accordance with all Applicable Regulations or our verification standards whichever requires the higher standard to ensure that the Application has been fully and properly completed and take all reasonable steps to ensure that the information it contains is in every material respect accurate correct and not misleading. 4.2 You shall retain all documents obtained in respect of paragraph 4.1 and provide these to us if required. 4.3 We will not be liable for any omissions by you in the provision of the information specified in paragraph You will not withhold any information or documentation that may be material to an Application and where there is any doubt about whether or not any information or documentation is material for the purposes of this paragraph you must be treat it as material. 4.5 All documentation as required by us and notified to you from time to time must be obtained by you and sent to us with any Application.

4 4.6 You confirm that you will immediately bring to our attention any fraud in relation to any Mortgage, or any matter that could be considered potential fraud or which could affect our decision to offer a Mortgage. 5 APPLICATIONS 5.1 In relation to each Application you shall: ensure that the Borrower meets the requirements contained in any Lending Policy; where the Application relates to a Regulated Mortgage provide the Borrower with all documentation required by and in accordance with MCOB; not submit any Application for a Mortgage which would amount to a consumer credit agreement as defined in Section 8 of the Consumer Credit Act 1974; ensure that, before any Application is made to us the Key Features Illustration in respect of that Mortgage has been provided to the Borrower; ensure that the Borrower is not your agent, your employee, your spouse or child or related to you or yourself; ensure that the Borrower s status as an existing or new customer is accurately recorded in the Application; take all reasonable steps to ensure that the information provided in and with the Application is full, accurate and complete by the time that you submit the Application to us for underwriting. It is our responsibility to decide whether the Application is complete for our purposes and whether we shall issue a Mortgage Offer and if so on what terms; forward to us all relevant documentation provided to you by the Borrower or obtained by you on the Borrower s behalf in connection with their Application with us; and notify us in writing at the time of submission of any Application if the Borrower or any guarantor of the Borrower is an employee of yours or is the spouse or child of yours or any employee of yours. 6 YOUR OBLIGATIONS 6.1 You warrant and represent that: you are an agent of the Borrower and have authority to act on behalf of the Borrower; you hold all the relevant legal, regulatory and other authorisations necessary for carrying out your business and for referring Business to us; and you conduct your business in accordance with the Applicable Regulations. 6.2 You agree to inform us immediately in writing in the event that: you cease to act on behalf of the Borrower; any of your authorisations, registrations or permissions needed to conduct all or part of your business lawfully are not current or are believed to be in jeopardy; an Appointed Representative ceases to be an Appointed Representative;

5 6.2.4 you commit a material breach of any Applicable Regulations; or you receive any notice of or become aware of any regulatory concerns, investigation or other action whether conducted by the Regulator. 6.3 You must at all times comply in all respects with the requirements imposed on you by the FCA in relation to regulated activities relating to Regulated Mortgages or other regulated products. 6.4 You shall not charge a fee to the Borrower before a Key Features Illustration has been provided to the Borrower. 6.5 You shall not impose any additional conditions in relation to the eligibility of the Borrower for the Mortgage than those imposed by us which we have notified to you. 6.6 You must not require the Borrower to take out any policies such as insurance policies, for example, as a condition of taking out the Mortgage. 6.7 If we provide you with information on Regulated Mortgages in the format of a Key Features Illustration, prior to you issuing a Key Features Illustration to the Borrower, you must carry out such checks as are reasonable to ensure that the information in the Key Features Illustration does not contain any manifest errors. Any information provided by us will be based upon the data provided to us by you and you are responsible for the accuracy of the data provided to us. 6.8 You shall not at any time hold yourself out as our agent whatsoever. 6.9 You shall keep all details regarding the Borrower up to date and will use your best endeavours to provide only information to us that is true and complete in all material aspects. You will advise us as soon as you become aware that the information provided is or becomes untrue or incomplete. 7 DOCUMENTATION 7.1 You must pass on immediately to the Borrower, without amendment, all documentation that we supply for the benefit of, or completion by, the Borrower. 7.2 We may send communications direct to the Borrower. 7.3 All items of property belonging to us but in your possession (i.e. books, documents, computer hardware & software and any other items) must be kept in good condition and be available for inspection by us on demand. All items provided by us will remain our property at all times. 7.4 Other than using standard material supplied by us providing the Services you must not publish, circulate, issue or release any advertisements or literature relating to our business or make use of our name or logo or that any of our subsidiaries or affiliates or associated companies without our previous written consent. 7.5 You shall not sign or amend any documents or policies on our behalf nor make any statements or promises or representations of any kind whether written or oral which bind us or any employee or director of ours and you shall not hold yourself out as having authority to make such representation. 8 COMPLAINTS 8.1 You must:

6 8.1.1 have a documented internal complaints procedure which reflects best practice as identified by the Financial Ombudsman Scheme requirements; maintain and have available for inspection a complaints log reflecting complaints made in respect of activities undertaken in accordance with these terms. 8.2 You must immediately notify us of any verbal or written complaint received by you. 8.3 You will at no time make any response to a complaint in the name of or purportedly on our behalf, or offer any compensation for any matter relating to a complaint about our service. This paragraph does not affect your right to deal with and/or settle any complaints in respect of matters which do not concern us. If any admission or settlement affects the continued liability of the Borrower under the Mortgage, you will fully indemnify us in respect of all losses incurred. 8.4 We may determine procedures for dealing with such complaints and potential complaints which may include: obligations for you to submit to investigation by and provide information to us and such other persons as we may direct; obligations to you promptly to make any payments to Borrowers or to submit to any other sanctions that we may reasonably require; and restrictions on the contact between you and the person making the complaint. 8.5 Where any Regulator brings any action or investigation in relation to activities or where disciplinary or complaints procedures are applied in relation to paragraph 8.1 we may: withhold or delay any payments due to you until you have implemented or discharged any sanctions resulting from those procedures; and/or either indefinitely or temporarily limit the activities that you may carry on. 8.6 You will comply with any instructions that we may give you concerning investigations which may be carried out by any Regulator or with any instruction which may result from the exercise of intervention powers by any Regulator. 9 PAYMENTS 9.1 Any commission, charges or fees (together Payments) payable by us to you will be agreed in writing from time to time and will, at all times, be in accordance with the Applicable Regulations. 9.2 All such Payments must be properly disclosed to the Borrower in accordance with the Applicable Regulations. If any such fees must be disclosed by us in the Mortgage Offer, you must inform us of the Payment at the time an Application is submitted to us. 9.3 We will cease making payments to you in the event that: we are prevented from making Payments by the operation of any law or regulation provided the Payments have not already validly accrued to you to the extent that we are permitted by law to make such Payments; you fail to comply with these Terms; we are notified or it is reasonable to infer that you are no longer permitted to act on behalf of the Borrower.

7 9.4 Without prejudice to any other rights or remedies available to us: we reserve the right to cease making all Payments in the event that any of your directors or partners enter into a voluntary arrangement, have bankruptcy or liquidation proceedings instituted against them, have a receiver appointed over their assets or have been charged with or convicted of an offence involving fraud or dishonesty we reserve the right to withhold Payment or require you to repay all or parts of any Payment for Business that was not submitted in accordance with these Terms. 9.5 You shall not be entitled to and shall repay any Payments received in connection with Business which is cancelled by the Borrower or cancelled or voided by us or for any other reason given in these Terms. 9.6 Any Payment due to us by you shall be due and payable without any formal demand being issued by us. 10 YOUR DEALINGS WITH US 10.1 You will deal with us at all times honestly, openly and in good faith You will cooperate with us in dealing with regulatory enquiries or investigations, and with requests made by us for information or documentation You must allow us access to your premises and employees during normal business hours with 24 hours upon request You will permit us to carry out audits on you, whether on or off your premises, and will give us or our auditors access to your books, records and accounts and will provide any information requested by us. 11 INDEMNITY 11.1 You agree to indemnify and keep us and any of our officers or employees from and against all actions, proceedings, claims, demands, losses, costs, expenses, damages and liability, arising in any way directly or indirectly out of: any breach of or failure by you to comply with these Terms; or in respect of any representation, warranty or other statement made to a Borrower by you that is not in accordance with the terms of the Mortgage Offer We will only be liable to you for losses that have arisen directly as a result of our (or our agents ) negligence, fraud or wilful default, subject to a maximum of the procuration fee due to be paid. Under no circumstances will we be liable for any special, indirect, consequential damages or losses, or for any loss of profit or lost business opportunity For the avoidance of doubt, you agree to indemnify us from and against all actions, proceedings, claims, demands, losses, costs, expenses, damages and liability, arising in any way directly or indirectly out of a breach of paragraph PROFESSIONAL INDEMNITY INSURANCE You warrant to us that you have and will maintain professional indemnity insurance which, as a minimum complies with the requirements imposed by the FCA and to the extent that we impose additional requirements from time to time over and above those imposed by the FCA, that you

8 maintain a policy which satisfies our requirements. As and when required by us, you will produce for inspection documentary evidence that such insurance is being properly maintained. 13 ANTI-BRIBERY 13.1 You shall (and shall ensure that any Associated Person shall): comply with all Applicable Regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; have and shall maintain in place your own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Applicable Regulations and will enforce them where appropriate; promptly report to us any request or demand for any undue financial or other advantage of any kind received by the Intermediary in connection with the performance of this agreement; and provide such supporting evidence of compliance as we may reasonably request You shall ensure that any Associated Person to you who is performing services in connection with these Terms does so only on the basis of a written contract which imposes on and secures from such Associated Person terms equivalent to those imposed on you under this paragraph 13. You shall be responsible for the observance and performance by such Associated Person of this paragraph, and shall be directly liable to us for any breach by such Associated Person of this paragraph You shall notify us immediately if it becomes aware, or suspects, that there has been any failure to comply with clause DATA PROTECTION 14.1 You must be registered as a data controller with the Data Protection Commissioner under the relevant provisions of the DPA. Where we shall receive Personal Data (as defined in the DPA) from you pursuant to these Terms, then the parties hereunder warrant that they will comply at all times with the DPA and any relevant laws and regulations Where Personal Data is supplied or disclosed to a party pursuant to these Terms, the recipient of the Personal Data will: ensure that such Personal Data is only used for the purposes of the Services or otherwise as authorised by the disclosing party; and take all reasonable measures having regard to the parties obligations under the DPA to ensure the security and integrity of all personal information which is under the care and control of the recipient. Such measures shall include the secure storage and destruction (as applicable) of personal information and the implementation of procedures to prevent unauthorised access to the personal information For the avoidance of doubt, a recipient of Personal Data shall be deemed to be a Data Processor (as defined under the DPA) and the discloser of Personal Data shall be deemed to be a Data Controller (as defined under the DPA). 15 ELECTRONIC SERVICES 15.1 Use of our website and any additional electronic services provided to you shall be subject to these Terms and any on-line Terms which may be notified by way of the said services or by other means.

9 15.2 We will not accept any liability for communications which may be intercepted or changed after they have been sent We will endeavour to make any relevant electronic services accessible for your use. We cannot however guarantee this availability, and we will have no liability for any unavailability for any period We reserve the right to withdraw or suspend our electronic services temporarily or permanently, and without notice. 16 TERMINATION 16.1 Either party may terminate these Terms by giving one month s notice in writing We may terminate these Terms with immediate effect on the occurrence of any one or more of the following: any material breach by you or any person or body for which you are responsible for (including an Appointed Representative) of any of the provisions contained within these Terms; any misconduct by you or any person or body for which you are responsible for (including an Appointed Representative) which is or could be reasonably viewed as prejudicial to our business or reputation; you cease to be appropriately authorised or exempt under the FSMA; cessation or suspension or intended cessation or suspension of your operations or in any circumstance where in our reasonable opinion it is likely to affect materially your ability to perform your obligations under these Terms; material litigation or reconstruction involving you including (without limitation of the foregoing) bankruptcy, dissolution, administration, winding up or seizure of assets; and you shall keep us advised in writing of any facts known to you within the scope of this paragraph; any failure by you to comply with paragraph Upon termination, you shall: return to us any property belonging to us as soon as it is practicably reasonable to do so; cease any and all promotion of our Business; immediately cease and desist from using, in any manner or form, the State Bank of India (UK) trademarks and brands; use all reasonable endeavours to ensure that all activities carried out under these Terms are transferred smoothly back to us or to such party as we may specify; and repay any sums which are owed then and subsequently to us within 28 days of the termination taking effect In the event that we terminate this Agreement pursuant to paragraph 16.2, we reserve the right to withhold any payments due to you other than those which accrued prior to the date of termination.

10 17 NOTICES 17.1 Any notice under these Terms shall be in writing and may be served by sending the notice by facsimile or first class prepaid post in the case of us to such address as is advised from time to time by us and in your case your last address known to us. Any notice shall be deemed to have been received, in the case of: a facsimile 12 hours after the time of dispatch; and first class prepaid post, 48 hours from the time of posting. 18 MISCELLANEOUS 18.1 Any failure or delay by us or by you to exercise or enforce any rights under these Terms and/or law, shall not be deemed to operate as a waiver of any such rights nor prejudice their enforcement in any way Neither your rights nor your obligations may be assigned, transferred or subcontracted or otherwise disposed, in whole or in part, without our prior written consent These Terms set out the entire agreement between us and you in substitution of any previous oral, written or implied agreement The parties do not intend that any term should be enforceable as a result of the Contracts (Right of Third Parties) Act 1999 by any person who is not party to these Terms In the event that any provision in the Terms shall be declared void, voidable, illegal or otherwise unenforceable by a judicial or other competent authority, the parties agree that any such provision shall be amended in such reasonable manner as achieves the intention of the parties without conflict with the judicial or other competent authority and that the enforceability of the remaining provisions shall not be affected Each party undertakes to act in good faith in relation to the other party for so long as these Terms remain in force and in particular, but without prejudice to the other terms in these Terms; undertake to discuss any dispute that may arise and seek an amicable settlement in relation to any such dispute. For the avoidance of doubt, this will not prejudice the right of either party to take legal proceedings We may from time to time make such relevant searches and checks in respect of the Intermediary and its owners/principals (including in relation to credit worthiness) as we see fit We may at our discretion support the generation of Key Facts Illustrations (KFI s) by third parties. You acknowledge that we have not authorised such third parties to make representations or give warranties on our behalf We may vary these Terms at any time by notifying the Intermediary. 19 GOVERNING LAW AND JURISDICTION These Terms of Business shall be governed by and construed in accordance with the laws of England and Wales and the parties agree to the exclusive jurisdiction of the English courts. You have read and understood these Terms and agree to comply with them in relation to Borrowers introduced to us. Introduction of Business to us, following receipt of these Terms signed, is implicit acceptance of our Terms.