This agreement is made between:
- Credabill (SC576828) whose registered office is at Winprop House, Unit 1 Gateway Business Park, Grangemouth, FK3 8WX
- The Credabill Member and/or the individual or Ltd company that will use Credabill (the “Introducer Appointed Representative”)
;Together the “Parties” and each individually a “Party”.
- The Principal is authorised and regulated by the FCA to carry on certain regulated activities in the United Kingdom.
- The Principal will appoint the Introducer Appointed Representative as an introducer for the purposes of section 39 of the Act pursuant to the terms of this Agreement.
- The Introducer Appointed Representative will undertake services including certain regulated activities pursuant to the Act on behalf of and under the supervision of the Principal as listed in Schedule 1.
- The Parties agree to set out in this Agreement the terms upon which the Principal engages the Introducer Appointed Representative and the terms upon which the Introducer Appointed Representative provides such services to the Principal.
- The Principal has satisfied itself on reasonable grounds, and will continue to satisfy itself with the assistance of the Introducer Appointed Representative on a continuing basis, that the Introducer Appointed Representative is fit and proper to act as an Introducer Appointed Representative and that it has adequate resources to monitor and enforce compliance by the Introducer Appointed Representative with the required standards of business conduct.
Definitions and Interpretation
- In this Agreement
“Agreement” means this Agreement between the Principal and the Introducer Appointed Representative. “Appointed Representatives Regulations” means the Financial Services and Markets Act 2000 (Appointed Representatives) Regulations 2001 (SI 2001/1217). “Approved Person” means a person to whom the FCA has given its approval under s59 of the Act. “Business Hours” means from 9.00 am to 5.00 pm on a Business Day. “Business Day” means any day which is not a Saturday, Sunday or public bank holiday in England. “Commencement Date” means the date on which the Introducer Appointed Representative commences use of the “Customer Introduction Software”. “Customer Introduction Software” means the software used to introduce potential customers to loans; also referred to as Credabill Online, Credabill Platform or Credabill. “Confidential Information” means all the information provided by each Party during the initial and subsequent discussions between the Parties relating to the Services, or that may be supplied orally or in writing or in any other form by either Party whether or not marked confidential. Such confidential information shall include all such information supplied at any time whether before or after the date of this Agreement. References to Confidential Information shall include records or copies of all or any part of the Confidential Information, in whatever medium. Confidential Information shall include (but is not limited to) commercial, financial, marketing and technical information, know-how, trade secrets, computer systems and software related documentation, of whatever nature and in any form or medium whether disclosed orally or in writing together with any reproductions of such information. “FCA” means the Financial Conduct Authority and any successor regulator which may from time to time be recognised under the Act or anybody which may replace it. “FCA Rules” means the rules of FCA or any successor regulator(s), as amended from time to time and detailed in the FCA Handbook (https://www.handbook.fca.org.uk/). “Intellectual Property” means all or any of the following: (i)the Trade Names; (ii)Know-How, being technical and other information or experience developed or acquired by the Principal and applied in the promotion of the Facilities; (iii)any patent, copyright, registered design, unregistered design right, trade mark or other industrial or intellectual property owned or used by the Principal together with any current applications for any registrable items of the foregoing “Part IV Permission” means the scope of permissions of an authorised person held pursuant to Part IV FSMA. “Personal Data” has the meaning as defined in the Data Protection Act (DPA). “Register” means the FCA Register as published on the FCA website (https://register.fca.org.uk/). “Regulated” means authorised and regulated by the FCA. “Regulatory Requirements” means all legal requirements, the FCA Rules and all legislation and regulations (including the Act) and statutory instruments insofar as they are applicable to the to the performance of the various obligations by the Parties under this Agreement or to the regulation of the Principal by the FCA. “Retail Client” has the meaning given in the FCA Rules. “RAO” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544). “Services” means the services provided by the Introducer Appointed Representative to the Principal as described in Schedule 1, consisting of one or more of the regulated activities listed in regulation 2 of the Appointed Representatives Regulations. In this Agreement, unless otherwise stated, reference to: a) a statute or statutory provision includes a reference to: i) any statutory amendment, consolidation or re-enactment of it to the extent in force from time to time; ii) all orders, regulations, instruments or other subordinate legislation (as defined in section 21(1) of the Interpretation Act 1978) made under it to the extent in force from time to time; and iii) any statute or statutory provision of which it is an amendment, consolidation or re-enactment; a) a “person” includes a legal or natural person, partnership, association, trust, company, corporation, joint venture, government, state or agency of the state or other body; b) a governmental, local governmental, regulatory or administrative authority or agency includes its successors; c) a Clause or Schedule or Recital is to a Clause of or Schedule or Recital to this Agreement and any reference to this Agreement includes its Schedules and Recitals; d) the terms “holding company”, “subsidiary”, “parent undertaking”, “subsidiary undertaking” and “wholly-owned subsidiary” shall be interpreted in accordance with the Companies Act 2006; e) a document is to that document as supplemented, otherwise amended, replaced or novated from time to time; f) any words and expressions defined in FSMA and/or the FCA Rules shall have the same meanings in this Agreement unless the context otherwise requires; g) the masculine, feminine or neuter gender respectively includes the other genders and any reference to the singular includes the plural (and vice versa); and h) a party is to a party to this Agreement and shall include any permitted assignees of a party. Clause headings in this Agreement are for ease of reference only and do not affect the construction of any provision.
- The Principal engages the Introducer Appointed Representative and the Introducer Appointed Representative agrees to provide the Services from the Commencement Date of use of the Credabill system for the duration of this Agreement subject to the terms and conditions contained in this Agreement.
- The Introducer Appointed Representative shall not carry on any activities or provide any services (or where relevant, omit to carry on any activity or provide services) the performance of which (or as the case may be, the non-performance of which): a) Breaches of section 19 of the Act; or b) Exceeds the scope of the services detailed in Schedule 1, including any limitation or restriction on those services as shown in the Principal’s Part IV Permission.
- The Introducer Appointed Representative’s authority to represent the Principal is set out in this Agreement. The Introducer Appointed Representative will have no authority, nor will it represent itself as having such authority, other than as specifically set out in this Agreement.
- The Introducer Appointed Representative shall carry out the Services in a way which is clearly distinct from any of the Introducer Appointed Representative’s other business which is performed as an Introducer Appointed Representative of another principal or which is not a regulated activity.
- The Principal grants to the Introducer Appointed Representative for the term of this Agreement the non-exclusive right to introduce the Business using the Intellectual Property.
3.Section 39 Appointment
- Subject to the terms and conditions set out in this Agreement, the Principal: a) With effect from the Commencement Date appoints the Introducer Appointed Representative as its appointed representative – introducer in the United Kingdom for the purposes of section 39 of the Act in respect of the Services and the Introducer Appointed Representative accepts such appointment; b) Accepts responsibility for compliance and monitoring of compliance with the FCA Rules and relevant provisions of the Act in respect of the activities of the Introducer Appointed Representative in providing the Services to the full extent required by section 39 of the Act and by the Appointed Representatives Regulations. C) Will support the Introducer Appointed Representative in its efforts to promote the Services and provide all information about the Services; d) Will supply to the Introducer Appointed Representative, information which may come into its possession which in the Principal’s opinion may assist the Introducer Appointed Representative to promote the Business.
- The Principal shall notify the FCA of the appointment so that the Introducer Appointed Representative’s appointment is included on the Financial Services Register.. The Principal shall give any required written notification to the FCA of changes in scope of the Introducer Appointed Representative.
- In carrying out their obligations under this Agreement both Parties undertake to comply with all applicable Regulatory Requirements.
- Subject to Clause 3.5, the Principal acknowledges that the Introducer Appointed Representative is able to act as an Introducer Appointed Representative for other principals.
- The Introducer Appointed Representative shall not carry on regulated business for any other firm as an Introducer Appointed Representative, without the Principal’s written permission.
- The Principal may: a) Prohibit the Introducer Appointed Representative from being appointed the Introducer Appointed Representative of any other counterparty; and b) Otherwise impose restrictions as to the other counterparties of whom the Introducer Appointed Representative may become an introducer appointed representative of, or as to the types of products in relation to which the Introducer Appointed Representative may represent other counterparties as an Introducer Appointed Representative. C) Decline to accept business from or through the Introducer Appointed Representative d) Share information concerning the Introducer Appointed Representative with the FCA, and where applicable,other Regulated firms. e) Instruct regular audit, request for information and review of procedures via staff of the Principal Firm or Compliancy Services Limited as it sees fit in monitoring the activities of the IAR.
- The Introducer Appointed Representative agrees to notify the Principal: a) If it seeks appointment as an Introducer Appointed Representative of another person, who the person is and the business for which the other person will accept responsibility; b) As soon as possible, of any change in the business notified under Clause 3.7 above; and
- c) As soon as possible, of the termination of any such appointment under Clause 3.7 above; d) If it becomes insolvent, or in the opinion of the [directors/partners] is likely to become insolvent; e) If it becomes the subject of a takeover or intends to acquire another firm; f) If the firm, or any of its controllers or management body commits any civil or criminal act or becomes accused of having done so: g) If there are any changes in the management or ownership structure of the firm; h) If there are any material changes to business practises or status of the firm;
- The Introducer Appointed Representative agrees to: 3.8.1 Abide by all FCA rules, policies, procedures and instructions provided by the Principal at appointment and from time to time in relation to the Introducer Appointed Representative’s conduct of Services and any marketing and promotion of the Services and/or the Principal; 3.8.2 Conduct the Business in a professional manner in accordance with good practice that is consistent with industry standards; 3.8.3 Carry out all aspects of the Business in a manner that is clearly distinct from any of the Introducer Appointed Representative’s other business; 3.8.4 Not describe itself as ‘agent’ or ‘representative’ of the Principal except as expressly authorised by this Agreement; 3.8.5 Make full disclosure of all material circumstances known to it which would be likely to influence the conduct or reputation of the Principal; 3.8.6 Comply with requests for provision of documentation or request for information as required by the Principal firm or its third party advisers 3.8.7 Supply to the Principal: reports, returns and other information relating to the Services in such detail as the Principal may reasonably request; 3.8.8 Inform the Principal promptly of any complaint or after-sales enquiry concerning the conduct of the Business 3.8.9 Inform the Principal of any breach or potential breach of the rules and requirements of the FCA; 3.8.10 Comply immediately with any request to cease or modify its regulated activities on behalf of the Principal if the Principal should make such request; 3.8.11 Act towards the Principal conscientiously and in good faith and not to allow its interests to conflict with the duties that it owes to the Principal under this Agreement and the general law; and 3.8.12 Allow the Principal to share information with the FCA and where applicable, third-party providers of Services. 3.8.13 Make and retain appropriate records in accordance with the Record Keeping rules in the FCA handbook and that it provides full access to these records to the Principal. 3.8.14 Make and retain appropriate registers in relation to FCA rules and regulations, as defined in the Principal’s policies and procedures. 3.8.15 Take appropriate product, governance and regulatory training both at appointment and ongoing in line with the requirements of the Principal.
The Introducer Appointed Representative shall comply and ensure that any persons who provide services to the Introducer Appointed Representative under a contract of services, a contract for service, or other arrangement in relation to the Services (including employees and representatives appointed by the Introducer Appointed Representative) comply with all Regulatory Requirements, including the training and competency requirements, that apply to the activities carried on by the Introducer Appointed Representative under this Agreement.
5 Financial promotions
The Introducer Appointed Representative shall only be permitted to use and issue financial promotions that have been provided by the Principal. The Principal will retain a record of all such promotions approved for use by the Introducer Appointed Representative.
6 Access for Auditing
- The Introducer Appointed Representative shall, on reasonable notice, provide the Principal’s auditor, consultant or other representative, the same facilities as are to be provided to the auditors of an authorised person under section 341 of the Act.
- The Introducer Appointed Representative agrees to cooperate fully with any requests for information or assistance in relation to the Services, that are made by the FCA, in Particular: Making appropriate persons available for meetings with the representatives of the FCA and/or persons appointed by the FCA to act on its behalf (together referred to in the following sub paragraphs as the “Representatives”) as reasonably requested; Giving the Representatives reasonable access to any records, files, tapes or computer systems which are within the Introducer Appointed Representative’s possession or control, and providing any facilities which the Representatives may reasonably request; Providing the Representatives with specified documents, files, tapes, computer data or other material in the possession or control of the Introducer Appointed Representative as reasonably requested; Printing information in the Introducer Appointed Representative’s possession or control which is held on computer or on microfilm or otherwise convert it into a readily legible document or other form which the Representatives may request; Permitting the Representatives to copy documents or other material on the premises of the Introducer Appointed Representative at the Introducer Appointed Representative’s reasonable expense and to remove copies and hold them elsewhere, or providing any copies, as reasonably requested; Permitting the Representatives to have access, with or without notice, during reasonable business hours to any business premises of the Introducer Appointed Representative in relation to the discharge of the functions of the FCA; and Answering truthfully and promptly all questions which are reasonably put to it by Representatives.
In consideration of its status as an Introducer Appointed Representative pursuant to this Agreement, the Introducer Appointed Representative agrees to pay to the Principal [such fees and properly recoverable disbursements (together with VAT which will be added, if applicable) as shall from time to time be agreed between the Principal and the Introducer Appointed Representative].
8 Term and Termination
- This Agreement shall take effect from the Commencement Date and shall continue in force until terminated in accordance with the provisions of Clause 8.
- Either Party may terminate this Agreement: a) (Subject to the full settlement of fees due from the Introducer Appointed Representative to the Principle under Clause 8), at any time by giving to the other Party not less than 30 days’ notice in writing; or b) By giving prior written notice, or if not possible, by providing written notice immediately on termination, to the other Party: i) In the event of any circumstance which requires the termination of this Agreement under the Regulatory Requirements or where the FCA so directs; or ii) As soon as the Introducer Appointed Representative obtains a relevant Part IV Permission; or a) With immediate effect by giving written notice to the other Party if such other Party: i) Has committed a material breach of this Agreement that is remediable and that Party and has failed to remedy such breach within 30 days; ii) Becomes unable to pay its debts; iii) Enters into a voluntary arrangement (whether formal or informal) with its creditors; iv) Has a receiver appointed of all or any part of its undertaking asset or income; v) Has a petition presented for an administration order to be made; and/or vi) Has an order made for its winding up or passes a resolution for a members’ or creditors’ voluntary winding up otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction. Vii) Is subject to a change in control, where the Party is a body corporate
- The Principal may terminate this Agreement where it has reasonable grounds to believe that the conditions in SUP 12.4.2 R of the Supervision Manual in the FCA’s Handbook are not satisfied, or are likely not to be satisfied, in relation to the Introducer Appointed Representative.
- Any termination of this Agreement under this clause is without prejudice to any other rights or remedies to which a Party may be entitled under this Agreement or at law. Termination does not affect any accrued rights or liabilities of either Party or any provision which is expressly or by implication intended to come into force on, or continue in force after, termination.
- On termination of this Agreement: a) The Introducer Appointed Representative will immediately cease all regulated activities relating to the Services; b) The Introducer Appointed Representative will return to the Principal all documentation and material supplied by the Principal for the Introducer Appointed Representatives use in connection with the Services; and c) The Principal shall notify the FCA of the termination of this Agreement.
- Notwithstanding any other provision of this Agreement, this Agreement may not be terminated by either Party in contravention of the FCA Rules.
9 Data Protection
Both Parties shall comply at all times with the Data Protection Act 1998 (the “DPA”), and any regulation that supersedes it, in respect of any Personal Data (as defined in the DPA) processed by either Party pursuant to this Agreement (the “Personal Data”) and any present or future regulations made under or separate to the DPA or any other legislation relating to the protection of Personal Data.
- Where either Party receives a complaint regarding the actions of the other or someone acting on that other party’s behalf, the recipient Party shall, where permitted under applicable law, transmit all such complaints to the other Party and will promptly provide any information reasonably requested by the other Party in order to deal with such a complaint.
- If it appears that any legal or regulatory proceedings are to be taken by a third party against the Introducer Appointed Representative and/or the Principal in respect of this Agreement, then the Party receiving the notice will, where permitted under applicable law, immediately inform the other Party.
- The Principal shall have responsibility for responding to, investigating and resolving complaints. The Introducer Appointed Representative will promptly facilitate the resolution of complaints made against it.
- The Introducer Appointed Representative shall upon receipt of a complaint in connection with the Services, pass all information regarding the complaint and Services to which it relates, to the Principal.
- Where a complaint against the Introducer Appointed Representative whether upheld or not, results in redress becoming payable, the Introducer Appointed Representative shall recompense the Principal in full.
- The requirements of clause 10.4 and 10.5 shall expressly continue following termination of the Agreement.
- The Parties shall: a) Keep confidential all Confidential Information; and b) Use the Confidential Information only in connection with the performance of the Agreement and not otherwise or for the benefit of itself or any third party.
- The provisions of Clause 11.1 shall not apply to any Confidential Information which is: c) Lawfully obtained after the date of this Agreement free of any duty of confidentiality otherwise than directly or indirectly from a Party; d) Already in a Party’s possession other than as a result of a breach of duty of confidence; e) In the public domain (other than as a result of a breach of this Clause 2); and f) Required to be disclosed pursuant to any law or regulation from time to time in force in any relevant territory or on request of any competent regulatory authority.
- The conditions contained in Clause 112 shall continue to apply after the termination of this Agreement without a limit in time.
12 Use of Trade Marks and Trade Names
- For the purposes of this Agreement: a) The Principal grants the Introducer Appointed Representative permission to use and/or reproduce the Principal’s name, mark or logo only to the extent necessary for the performance by the Introducer Appointed Representative of its obligations under this Agreement; b) Where approval is given by the Principal to marketing materials, such approval shall grant the Introducer Appointed Representative permission to use and/or reproduce the Principal’s name, mark or logo but only as contained in such material, statements or pronouncements or announcements; c) The Principal shall indemnify the Introducer Appointed Representative against all and any costs, damages, expenses, losses or liabilities suffered by the Introducer Appointed Representative as a result of any claim by a third party that the use of the Principal’s trade mark image or logo infringes any intellectual property of that third party; d) It is agreed that any use by the Introducer Appointed Representative of the Principal’s name, mark or logo in accordance with the terms of this Agreement shall not imply or grant any other rights of use, licence or ownership of the Principal’s name, marks or logos; and e) Unless otherwise agreed, upon termination of this Agreement, the Introducer Appointed Representative will discontinue using all trademarks, trade names, logos, images or signs belonging to the Principal and shall not represent that they are in any way authorised to use such trademarks, trade names, logos, images or signs.
This Agreement is personal to the Parties and the neither Party may assign, delegate, subcontract or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the other.
14 Warranty and Indemnity
- The Introducer Appointed Representative warrants and undertakes that at the Commencement Date and throughout the duration of this Agreement it will comply with the instructions issued by the Principal from time to time relating to its appointment as an Introducer Appointed Representative necessary to enable the Principal to comply with any limitations or requirements of its own Part IV Permission; and 14.2 The Introducer Appointed Representative indemnifies the Principal from and against any losses, claims, demands, damages, costs, charges, expenses or liabilities (or actions, proceedings or investigations in respect thereof) resulting from the Introducer Appointed Representative`s actions in contravention of the Regulatory Requirements or of any of the terms of this Agreement
No failure, delay or indulgence by either Party in enforcing any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any right, power or privilege preclude or restrict any further exercise thereof or the exercise of any other right, power or privilege.
16 Unenforceable Provisions
Where any provision of this Agreement is declared by any competent authority to be void, voidable, illegal, or otherwise unenforceable, that provision shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
17 Force Majeure
- Neither Party to this Agreement shall be liable to the other party in any manner whatsoever for any failure or delay in performing any of its obligations under this Agreement, or for the consequences of any such failure or delay, to the extent that such failure or delay is due to any cause beyond the Party’s reasonable control.
- If a cause described in Clause 17.1 arises, the Party affected shall, as soon as practicable, give notice to the other Party of what has happened, giving full particulars of the circumstances in question and steps taken or to be taken and shall use reasonable endeavours to resume full performance of its obligations without avoidable delay. The Party affected shall not be entitled to payment from the other Party in respect of any additional costs and expenses incurred in relation to such action.
18 Entire Agreement
- This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, representations, proposals, understandings and Agreements whether written or oral.
- This Agreement shall only be modified if such modification is in writing and signed by authorised representatives of both Parties.
19.1 Save as expressly provided in this agreement, no amendment or variation of this agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.
20 No Partnership
20.1 Nothing in this Agreement shall be deemed to constitute a partnership or contract of employment between the parties. 20.2 Neither Party shall (save as expressly provided in this Agreement) have any authority to bind the other in any way.
21 Rights of Third Parties
No person who is not a party to this Agreement shall have any rights under this Agreement, nor shall such a person be entitled to enforce any of its terms under the Contracts (Rights of Third Parties Act) 1999 or otherwise.
22.1 Notices between the Parties relating to this Agreement must be in electronic form and must be delivered by digitally transmission.
23.1The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver, and to exercise their rights and perform their obligations under this Agreement.
24 Governing Law
24.1This Agreement and any non-contractual obligations arising in connection with it (and, unless provided otherwise, any documents entered into in connection with it) shall be governed by and construed in accordance with Scots Law.
24.2 The Scottish courts shall have exclusive jurisdiction to determine any dispute arising in connection with this Agreement (and, unless provided otherwise, any document entered into in connection with it), including disputes relating to any non-contractual obligations.
SCHEDULE ONE: Services
The Introducer Appointed Representative will provide only the following services for and on behalf of the Principal: Effecting introductions of loan applications for the provision of goods and services to the Principal. Distributing non-real time financial promotions which relate to products and services available from or through the Principal. The following guarantee restrictions apply to any goods supplied under a credit agreement administered by the principal; maximum of 10 year guarantee. The following guarantee restrictions apply to any intangible services supplied under a credit agreement administered by the principal; maximum of 2 year guarantee.
SCHEDULE TWO: Fees
The Introducer Appointed Representative will remunerate the Principal for the service in the following methods
1. 2.9% of a successful loan amount (gross) that is paid out the the Introducer Appointed Representative
2. 2.9% of a credit/debit card payment (gross) made to the Introducer Appointed Representative.