The undernoted terms and conditions set out the basis on which the provision of the Credit Brokering Services (as below defined) by the Broker (as below defined) to the Client (as below defined) are governed.
It is recommended that the Client (as defined below) should take such independent advice as the Client considers necessary before accepting these terms and conditions.
The Client (as below defined) should read these terms and conditions carefully and if the Client (as below defined) does not agree to them, the Client (as below defined) should not agree to contract with the Broker for the provision to the Client (as below defined) of any Credit Brokering Services (as below defined) from this Website. To indicate acceptance of these terms and conditions, the Client (as below defined) should click on the button marked “I Agree”. If the Client (as below defined) does not agree to these terms and conditions, the Client (as below defined) should exit this Website.
For the purposes of the terms and conditions set out below, the following expressions shall, unless otherwise specified or the context otherwise requires, have the meanings set opposite them respectively:
Agreement | means the agreement, by and between the Broker and the Client, that is created by the Client’s acceptance of these terms and Conditions and any Confirmation of Instructions Notice issued in connection with the same. |
Ancillary Service | means any service provided by a third-party engaged by the Broker in connection with the Credit Broking Services, which could include (but is not limited to) the services of solicitors or valuers. |
Appraisal Fee | means the appraisal fee set out in condition 3.1 below. |
Arrangement Fee | means the arrangement fee set out in condition 3.2 below. |
Broker | means Red Fox Finance Group Limited (Registered Number SC778070) having its Registered Office at C/O Mckee Campbell Morrison Solicitors, 144 St. Vincent Street, Glasgow G2 5LQ. |
Client | means a third party accepting these terms and conditions for the provision by the Broker of Credit Broking Services. [How identify? Details to be inputted on web page?] |
Code | means the code of practice of the NACFB which applies to all members of that association, as published by the NACFB (available on request from the NACFB or on the NACFB website www.nacfb.org) and as may be amended from time to time. |
Completion | means the date that a Finance Agreement between the Client and a Lender becomes effective following the submission of a Lending Proposal. |
Credit Broking Services | means the credit brokering services which the Broker agrees to provide to the Client in accordance with these terms and conditions. |
Commission | means a sum of money that is paid to the Broker by a Lender in connection with a Lending Proposal. |
Commencement Date | means the date these terms and conditions are accepted by the Client in accordance with the provisions of the Website. [How does Confirmation of Instructions Notice then work?] |
Confirmation of Instructions Notice | means a confirmation of instructions notice to be issued by the Broker [and accepted by the Client.] [Does this need to have the format shown in the T’s & C’s?] |
FCA | means the Financial Conduct Authority |
Fee | means any of the Appraisal Fee, the Arrangement Fee and/or the Renewal Fee as the case may be. |
Finance Agreement | means an agreement to finance a Finance Product. |
Finance Offer | means a written offer setting out the proposed terms of finance being offered to the Client by the Lender (whether such offer is conditional or unconditional) or any replacement or update thereof. |
Finance Product | means an instrument in terms of which an entity can either borrow money or enter into a finance arrangement for the provision, purchase or refinancing of goods or services. |
Financial Services Register | means the register which provides confirmation as to the authenticity and contact details of regulated financial services firms. |
Lender | means any lender to whom the Lending Proposal is presented by the Broker. |
Lending Proposal | means a funding proposal prepared by the Broker and submitted to the Lender setting out, amongst other things, the requirements [recorded in the Confirmation of Instructions Notice]. |
Finance Product Amount | means the sum advanced by the Lender to the Client following the issue of a Finance Offer by that Lender which has been accepted by the Client. |
Minimum Standards | means the minimum standards of the NACFB, as published by the NACFB (available on request from the NACFB or on the NACFB website www.nacfb.org) and as may be amended from time to time. |
NACFB | means the National Association of Commercial Finance Brokers |
Parties | means together the Broker and the Client, each being a “Party”. |
Regulated Activities Order | means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (as updated or amended from time to time). |
Renewal Fee | means the renewal fee set out in condition 5.1 below. |
Suitability Letter | means a report outlining the Broker’s recommendations to the Client as to which Lender the Broker feels is most suitable in submitting a Finance Offer to the Client. |
Ombudsman | means the Financial Ombudsman Service, Exchange Tower, London, E14 9SR. |
Website | means the user interface and functionality made available on pages under the domain name www.[specify]. |
In addition, in these terms and conditions (unless otherwise specified and the context otherwise requires) references to statutes and subordinate legislation shall be construed as references to those statutes or that subordinate legislation as respectively replaced, amended or re-enacted from time to time.
The following terms and conditions apply to the provision by the Broker of any Credit Brokering Services to the exclusion of all other terms, namely:-
1.1. The Broker will start providing Credit Broking Services to the Client from the Commencement Date.
2.1. The Broker confirms that it is authorised and regulated by the FCA with reference number [specify]. The Broker’s authorisation and permitted activities can be viewed on the Financial Services Register by visiting the FCA’s website. https://register.fca.org.uk/
2.2. The Broker confirms it is a member of the NACFB and has adopted the Code and Minimum Standards set by the NACFB. The Broker’s membership status can be confirmed by contacting the NACFB on the below link. https://www.nacfb.org/
3.1. Appraisal Fee In consideration of the Broker’s appointment as the provider of Credit Broking Services to the Client, on the Commencement Date the Client shall pay to the Broker an Appraisal Fee of [£specify] for the purposes of the Broker assessing and preparing the Lending Proposal, with payment of such Appraisal Fee to be made through [cart wording?].
3.2. Arrangement Fee Following a Finance Offer being made by a Lender to whom the Broker has presented a Lending Proposal, the Client will pay to the Broker, in addition to the Appraisal Fee in condition 3.1, an Arrangement Fee of [specify] % of the Finance Product Amount. Payment of the Arrangement Fee shall be made by the Client to the Broker within 14 days of the date of issue of the Finance Offer by that Lender. [The Arrangement Fee shall be payable by the Client to the Broker whether the Client accepts the Finance Offer or not].
3.3. Refund of Fees etc – (Optional for Unregulated)
3.3.1. Unless the Lending Proposal comprises an application for a Regulated Mortgage Contract (as defined by Article 61(3)(a) of the Regulated Activities Order) or a Home Finance Transaction (as defined in the FCA handbook), the Client will be entitled to a refund [of the Arrangement Fee] (a) within a period of 6 months commencing on the date the Broker submits a Lending Proposal, the Client accepts a Finance Offer and enters into a Finance Agreement but exercises in respect of that Finance Agreement either a right to withdraw under section 66A of the Consumer Credit Act 1974 or a right to cancel under section 69 of the Consumer Credit Act 1974 or (b) the Broker is otherwise required to issue a refund by law.
3.3.2. The Client may, at the Broker’s discretion, be entitled to a refund [of the Appraisal Fee] if the Client does not enter into a Finance Agreement within a period of 6 months commencing on the date the Broker submits a Lending Proposal, or if there is more than one Lending Proposal submitted by the Broker, on the date the Broker submits the first Lending Proposal.
3.3.3. If the circumstances in conditions 3.3.1 or 3.3.2 above apply, then the Broker shall refund the [Appraisal Fee / Arrangement Fee] paid under these terms and conditions in respect of the relevant Lending Proposal less £5.00 in accordance with condition 3.3.4.
3.3.4. If the circumstances referred to in conditions 3.3.1 or 3.3.2 of these terms and conditions apply, then the refund shall be paid by the Broker to the Client within 30 days of the end of the period referred to in conditions 3.3.1 or 3.3.2 above or the date upon which it is clear to the Broker that the Finance Offer will not proceed to Completion, whichever is sooner.
3.3.5. If the circumstances referred to in condition 3.3.1 apply, and Fees have become due, they will cease to be payable.
3.3.6. For the avoidance of doubt, in the circumstances referred to in condition 3.3.1, no Fees are refundable, or shall cease to be payable, if the Lending Proposal comprises a Regulated Mortgage Contract or Home Finance Transaction.
4.1. By accepting these terms and conditions, the Client acknowledges that:
4.1.1. the Client has been urged to seek such independent advice as the Client considers necessary before accepting these terms and conditions.
4.1.2. The Broker will source Finance Offers from [an unrestricted number of Lenders]. In performing this role, the Broker is doing no more than effecting an introduction between the Client and the Lender(s) to enable the Client to choose a Finance Product which, in the Client’s sole opinion, is suitable for the Client and accordingly the Broker is not acting as the Client’s agent or otherwise acting on the Client’s behalf and as such there is no duty upon the Broker to provide the Client with impartial advice, information or any recommendation relating to a Finance Product.
4.1.3. The Broker may receive a Commission from the Lender for introducing the Client to the Lender in relation to the funding set out in the Finance Offer, as well as receiving Fees separately from the Client pursuant to conditions 3.1 and 3.2 of these terms and conditions. For the avoidance of doubt any payment of Commission is subject to the terms of the Broker’s arrangements with the Lender who pays that Commission and will not be subject to the refund arrangements in condition 3.3 above. If the Client wishes to receive any further information concerning any Commission paid to the Broker by the Lender (including the amount of such Commission), the Client may by written notice to the Broker request such be provided.
For regulated transactions only – optional for unregulated
4.2. The Client acknowledges that it is aware that the Broker is required to disclose the nature of the payment of any Commission in the Broker’s communications, as well as when making a recommendation to the Client. The existence and nature of commission arrangements where the Commission varies depending on the Lender, product or other permissible factors will always be disclosed. The disclosure will also cover how the arrangements could affect the Broker’s recommendations to the Client. Such disclosures will be made in the Suitability Letter issued to the Client.
4.3. The Client acknowledges that it is aware that the Broker may receive Commission from referring the Client to an Ancillary Service for introducing the Client to them, and the Client has no objections to the Broker receiving this amount. If the Client wishes to receive any further information concerning any Commission paid to the Broker by any Ancillary Service (including the amount of such Commission), the Client may by written notice to the Broker request such be provided.
4.4. Commission paid to the Broker may vary in amount depending on the Lender or product. Where the nature of any financial arrangement, including the amount of any Commission or any other type of remuneration is known, in advance of the Broker promoting or recommending a particular Lender or Finance Product, this information will be disclosed to the Client.
4.5. On the basis of the acknowledgements given as set out under this condition 4, by its acceptance of these terms and conditions the Client hereby consents to the Broker receiving and retaining any Commission paid.
5.1. The Client agrees to act with utmost good faith in the provision of information to the Broker. This duty is continuous and applies to all information the Client provides to the Broker, whether the Broker has requested it or whether the Client has provided it voluntarily. The Client agrees not to withhold information from the Broker.
5.2. The Client agrees to take all reasonable steps and use all reasonable endeavours to comply with and satisfy any condition imposed by the Lender who has made a Finance Offer [that accords with the requirements set out in the Confirmation of Instructions Notice].
5.3. The Client agrees to notify the Broker if at any time, they intend to appoint an additional or alternate broker or intermediary to obtain an offer of finance for them whereupon the Broker may , subject to any exclusivity arrangements and/or the nature of the Finance Product, be entitled to terminate the Agreement forthwith and the Client shall pay to the Broker any Fee incurred for any Credit Broking Services carried out up to the date of termination, save where such Fees cannot be charged to the Client by law.
5.4. If the Client fails to notify the Broker that they intend to appoint an alternate or additional broker or intermediary prior to doing so and if a Finance Offer is subsequently obtained from any Lender the Client will pay the Arrangement Fee calculated by reference to the Finance Offer made but otherwise in accordance condition 3.2 of these terms and conditions to the Broker.
5.5. The Broker may terminate the Agreement by giving 14 days written notice to the Client and the Client may be required to pay to the Broker any Fee incurred for any Credit Broking Services carried out up to the date of termination, as shall be notified by the Broker to the Client within [specify] days of termination.
5.6. The Broker agrees to act on behalf of the Client in accordance with the terms of the Code.
5.7. The Broker will investigate and deal with any complaints raised by the Client concerning the Credit Brokering Services provided by the Broker under the Agreement, promptly and reasonably, but if the Broker is unable to resolve any complaint to the Client’s satisfaction the Code stipulates the procedures available to the Client including NACFB Mediation.
5.8. If the Client is unhappy with the Broker’s response to their complaint, and the complainant falls within the regulated activities, the Client may be able to complain to the Ombudsman at:
Address: Financial Ombudsman Service, Exchange Tower, London, E14 9SR.
Contact: 0800 0234567, 0300 1239123.
Website: www.financial-ombudsman.org.uk
5.9. The Ombudsman will be able to confirm whether it can look at the complaint. If the Client is entitled to make a complaint to the Ombudsman, then they are not bound to follow any alternative procedure and can make their complaint to the Ombudsman within the timescales set down by the rules applicable to that scheme, details of which will be provided to the Client by the Broker on request.
5.10. These Terms and Conditions may only be varied or amended with the prior written consent of the Broker.
5.11. Each of the Broker and the Client confirms that they are each considered an independent data controller in relation to personal data and that each will comply with the relevant provisions of applicable data protection legislation.
5.12. The Client will also ensure that any disclosure of personal data to the Broker complies with applicable data protection legislation.
5.13. If the Client supplies the Broker with any personal data, the Client shall ensure it has a lawful basis to pass it to the Broker and will fully indemnify and hold the Broker harmless if the Client is not so entitled and that causes the Broker loss.
5.14. If any provision of these terms and conditions is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable, then that provision, will, to the extent required, be deemed severed from these terms and conditions and will be ineffective, without, as far as is possible, modifying any other provision of these terms and conditions and this will not affect any other provisions of these terms and conditions which will remain in full force and effect.
5.15. No failure or delay by the Broker to exercise any right, power or remedy in terms of these terms and conditions will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.
5.16. The Broker may assign or sub-contract all or any part of its rights or obligations created under these terms and conditions.
5.17. These terms and conditions are personal to the Client who may not assign or sub-contract all or any of its rights or obligations thereunder without the Broker’s prior written consent.
5.18. The Broker will maintain professional indemnity insurance cover in respect of its business with and on standard terms offered by reputable insurers.
5.19. The Client accepts that the Broker shall have no liability for any economic loss suffered or incurred by the Client (whether direct, indirect or consequential) insofar as it relates in any way to loss of business, loss of Client data, interruption of business or loss of profits or goodwill because of the manner of performance by the Broker of any obligations arising under the Agreement.
5.20. Nothing in the Agreement shall limit either Party’s liability in respect of any claims:
5.20.1. for death or personal injury caused by the negligence of such party;
5.20.2. resulting from any fraud including, without limitation, fraudulent misrepresentation made by such party; or
5.20.3. for which liability may not otherwise lawfully be limited or excluded.
5.21. The construction, performance, validity and all aspects whatsoever of these terms and conditions will be governed by Scots Law.
5.22. The Scottish Courts will have exclusive jurisdiction to settle any dispute, which may arise out of, or in connection with the Client Agreement, incorporating these terms and conditions, and each of the Broker and the Client parties agree to submit to that jurisdiction.
6.1. These terms and conditions shall come into force on the Commencement Date and will expire on the date which is 6 months from the date that the Client receives a finance offer from a Lender to whom the Broker has introduced the Client, at which stage, should the Client by then have not entered into a Finance Agreement, the same will lapse (the “Expiry Date”). Should the Client wish to continue receiving Credit Broking Services on or after the Expiry Date, after the Broker has refunded any Fees payable by the Client under condition 3 above, the Client may request that the Broker renews it upon payment by the Client of a Renewal Fee to the Broker of [£specify]. Any such Renewal Fee will be refunded by the Broker in the same circumstances and on the same conditions as is set out in condition 3.3 above.
6.2. Should the Agreement be renewed under condition
6.1. it will continue upon the same terms, save that:
6.2.1. the Renewal Fee will be payable by the Client to the Broker on demand in place of the Appraisal Fee; and
6.2.2. the Arrangement Fee will become payable, or repayable (if already refunded by the Broker to the Client pursuant to condition 3.3), by the Client to the Broker on the making of any new Finance Offer by the Lender.
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