Next Intelligence Executive Club Membership Agreement
Dated: Date of registration
(1) Mortgage Next Limited trading as "Next Intelligence"
(2) Next Intelligence Members
This Agreement is made the date of registration between:
1. Mortgage Next Limited (registered company number 03175440) whose registered office is at Roddis House, 12 Old Christchurch Road, Bournemouth, Dorset BH1 1LG] trading as "Next Intelligence" ("Next Intelligence");
2. Next Intelligence Members (the "Member").
Next Intelligence is the operator of the Club (as defined below) and has agreed to the Member becoming a member of the Club in accordance with the terms and conditions of this agreement.
It is agreed as follows:
1. Definitions and interpretation
1.1 In this agreement, unless the context otherwise requires, the following words have the following meanings:
"Applicable Regulations" all applicable laws of England and Wales and regulations, enactments, FCA Handbook of rules and guidance, regulatory permits and licences which are in force from time to time;
"Benefits" the benefits set out in the Schedule as varied by notice from Next Intelligence to the Member from time to time;
"Clawback" any refund that Next Intelligence makes or is required to make to the relevant Lender or Insurer in respect of any fees previously received by Next Intelligence;
"Competent Authority" (i) any person (whether autonomous or not) having legal and/or regulatory authority and/or enforcement powers in the UK from time to time and including but not limited to the FCA, the Office of Fair Trading, the Serious Fraud Office, the Financial Ombudsman Service and the Commissioners of Her Majesty's Revenue and Customs and/or (ii) any court of law or tribunal in the UK;
"Fee" the fee payable to Next Intelligence as notified to the Member from time to time;
"FCA" the Financial Conduct Authority and anybody superseding it;
"FSMA" the Financial Services and Markets Act 2000;
"Insurance Business" means the activities of arranging deals in contracts of insurance and/or making arrangements with a view to transactions in contracts of insurance and/or dealing in contracts of insurance as agent, as defined more particularly at Articles 25(1), 25(2) and 20(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
"Insurer" an insurer on Next Intelligence's panel of insurers;
"Lender" a lender on Next Intelligence's panel of lenders;
"Mortgage Business" Broking, advising on and/or arranging credit agreements secured on land carried on by a Mortgage Intermediary
" Club" the "Executive" Club of Mortgage Intermediaries operated by Next Intelligence;
"Mortgage Intermediary" means a person having authority and / or a licence from a Competent Authority (where necessary) for the conduct of Mortgage Business and/or Insurance Business
1.1 In this Agreement, unless the context otherwise requires:
1.1.1 any reference to a statute or a provision of a statute shall be construed as a reference to that statute or provisions as amended, re-enacted or extended at the relevant time;
1.1.2 any reference to a person shall be construed as a reference to any person, firm, company, corporation, association or partnership (whether or not having separate legal personality) or one or more of the foregoing;
1.1.3 any reference to the singular shall include the plural and vice versa;
1.1.4 any reference to the masculine gender shall include the feminine and neuter and vice versa;
1.1.5 the headings are inserted for ease of reference only and shall not affect the construction of this Agreement.
Next Intelligence hereby accepts the Member with effect from the date of this agreement as a member of the Club.
3. Next Intelligence Obligations
3.1 Next Intelligence shall use its reasonable endeavours to ensure that the Member receives the Benefits (subject to the terms and conditions of this agreement) in respect of Mortgage Business it places with a Lender and Insurance Business it places with a Lender or an Insurer through the Club.
3.2 Next Intelligence shall use its reasonable endeavours to ensure that the Member receives the Benefits (subject to the terms and conditions of this agreement) in respect of Mortgage Business it places with a Lender and Insurance Business it places with a Lender or an Insurer through the Club.
4. General Member Obligations
4.1 The Member warrants and undertakes that
4.1.1 it is and shall remain during the term of this agreement a person authorised by the FCA with all permissions granted to it under Part IV of FSMA as shall be necessary for it to conduct Mortgage Business lawfully and/or shall remain during the term of this agreement a person licensed by the Office of Fair Trading as a credit broker as shall be necessary for it to conduct Mortgage Business lawfully; and
4.1.2 it will not conduct any Insurance Business unless at the time such activities are undertaken it is a person authorised by the FCA with all permissions granted to it under Part IV of FSMA as shall be necessary for it to conduct Insurance Business lawfully.
4.2 The Member shall comply with all Applicable Regulations in performing its obligations under this Agreement and in carrying on its Mortgage Business and/or Insurance Business.
4.3 The Member undertakes that it will not do anything which might result in breach by Next Intelligence of any Applicable Laws, the rules of the FCA or any other laws or regulations.
4.4 The Member shall keep confidential any and all confidential information that it may acquire in relation to Next Intelligence and/or other members of the Club including but not limited to their business, affairs or clients and shall not use or disclose such confidential information for any purpose other than to perform its obligations under this agreement.
4.5 The confidentiality obligations in clause 4.4 shall not apply to any information which is publicly available or becomes publicly available through no act or omission of the Member, or which the Member is required to disclose by Law.
4.6 The Member shall procure that all of its employees, agents and sub-contractors (if any) who are engaged in or otherwise involved with the Mortgage Business and/or Insurance Business carried on by the Member and its membership of the Club comply with the obligations and observe the restrictions imposed on the Member by this agreement.
4.7 The Member shall provide Next Intelligence with all information and assistance required by any Competent Authority relating to any right or obligation of either party under this Agreement.
5. Payments to Member
5.1 Next Intelligence shall forward to the Member an agreed proportion of the fees received by it from the Lender or an Insurer in respect of Mortgage Business placed by the Member with a Lender or Insurer through the Club less:
5.1.1 the Fee;
5.1.2 an amount equal to any Clawbacks; and
5.1.3 any VAT which may be chargeable.
5.2 The payment under clause 5.1.1 shall be payable to the Member weekly or on such other basis as agreed between the parties.
5.3 Where the Member places Insurance Business with a Lender or an Insurer through the Club the Lender or Insurer will pay an agreed proportion of the commission payable to the Member direct and an agreed proportion to Next Intelligence. Any clawbacks in respect of commissions on Insurance Business will be claimed directly by the Lender or Insurer from each of the Member and Next Intelligence in the appropriate proportions.
5.4 If at any time the amount of Fees and/or Clawbacks and any other amounts owed to Next Intelligence by the Member exceeds the amount payable to the Member by Next Intelligence then the excess shall (at Next Intelligence's request) be paid on demand by the Member to Next Intelligence within seven days.
5.5 Notwithstanding any other remedy of Next Intelligence, in the event that any sum due from the Member under or in connection with this agreement is not paid on or by the due date for payment Next Intelligence may charge interest on the amount outstanding from time to time, such interest to accrue on a daily basis and be compounded monthly at the rate of 4% above the base rate for time being of Barclays Bank plc.
6. Indemnity & Liability
6.1 The Member shall indemnify and keep indemnified Next Intelligence against all actions, claims, damages, costs, demands, losses, expenses, awards (including, without limitation, legal and other professional fees and expenses) and liabilities (whether in contract, tort (including negligence), breach of statutory duty or otherwise) made against or incurred by Next Intelligence and arising from any breach by the Member of this agreement or otherwise from the Member's acts or omissions in connection with the Club and/or the Member's Mortgage Business and/or Insurance Business.
6.2 Next Intelligence shall not be liable to the Member for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise in each case whether direct, indirect or consequential which arises out of or in connection with this agreement.
6.3 Next Intelligence shall not be liable to the Member for any claims for indirect or consequential loss, damage or compensation whatsoever (howsoever caused) which arise out of or in connection with the agreement.
6.4 Nothing in this agreement excludes or limits the liability of either party:
6.4.1 for death or personal injury caused by their negligence; or
6.4.2 for fraud or fraudulent misrepresentation;
6.4.3 for any other matter which it would be illegal for them to exclude or limit or attempt to exclude or limit.
6.5 Neither party shall be liable to the other for any loss or damage or failure or delay in performance of this agreement which is caused by circumstances beyond the reasonable control of that party.
7. Audit Rights
7.1 The Member grants to Next Intelligence and to any Competent Authority and each of their authorised agents a right of access to its premises, employees, computer systems, data and records and any other information as Next Intelligence or the Competent Authority may require for any purpose in connection with the functions and duties of the Competent Authority or the regulatory or other obligations of Next Intelligence in relation to the subject matter of this agreement. This right may be exercised as frequently as is required by the Competent Authority and/or Next Intelligence and on such notice (if any) as the Competent Authority gives to Next Intelligence of its intention to carry out such audit.
8. Intellectual Property
8.1 The Member shall not use the trademarks, logos or brands of Next Intelligence without the prior written consent of Next Intelligence and if that prior written consent is given only strictly in accordance with its terms.
9.1 This agreement shall continue unless and until terminated in accordance with the provisions of this agreement.
9.2 Either party may terminate this agreement by giving to the other not less than 30 days' notice in writing to that effect at any time.
9.3 This agreement may be terminated with immediate effect by written notice from Next Intelligence at its sole discretion at any time on or after the occurrence of one or more of the following events:
9.3.1 the Member makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or being a firm where one of the partners in that firm becomes bankrupt or (being a body corporate) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction).
9.3.2 an encumbrancer takes possession, or a receiver or administrative receiver is appointed, over all or any of the property or assets of the Member; or
9.3.3 the Member ceases, or threatens to cease, to carry on business; or
9.3.4 Next Intelligence reasonably believes that any of the events mentioned above is about to occur in relation to the Member and notifies the Member accordingly;
9.3.5 (without prejudice to any of the foregoing parts of this clause 9.3) the Member commits any material breach of any of the provisions of this agreement.
10. Consequences of Termination
10.1 On termination of this agreement the Member's membership of the Club will immediately cease.
10.2 On termination of this agreement, the Member shall:
10.2.1 return to Next Intelligence all documentation and other items (of whatever nature) which are the property of Next Intelligence within five days of the date of termination;
10.2.2 immediately cease holding itself out in any way as a member of the Club or as associated with the Club or Next Intelligence;
10.3 Any termination of this agreement shall be without prejudice to any other rights or remedies a party may be entitled to under this agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this agreement which is expressly or by implication intended to come into or continue in force on or after such termination and in particular (but without limitation) the following clauses shall continue in full force and effect: 4.4, 4.6, 5.3, 5.4, 7.1 and 8.
11.1 Unless expressly stated in this agreement, nothing in this agreement will confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
11.2 This agreement shall constitute the entire agreement and understanding between the parties with respect to all matters which are referred to in it and the subject matter of it and shall supersede any previous agreement(s), prior drafts, undertakings, representations, warranties and arrangements of any nature whatsoever whether or not in writing between the parties in relation to the matters referred to in this agreement or in connection with the subject matter of it.
11.3 The Member shall not be entitled to assign or sub-contract or otherwise dispose of any of its rights or obligations under this agreement without the prior written consent of Next Intelligence. Next Intelligence may assign, sub-contract or otherwise dispose of any of its rights and obligations under this agreement without the consent of the Member.
11.4 No delay or failure on the part of any party in enforcing any provision in this agreement shall be deemed to be a waiver or create a precedent or in any way prejudice any party's rights under this agreement.
11.5 If any provision in this agreement is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, such provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of this agreement not affected by such invalidity or unenforceability shall remain in full force and effect.
11.6 No variation to this agreement shall be effective unless made in writing and signed by or on behalf of the parties.
12.1 Any notice or consent required or permitted under this agreement shall be in writing and shall be sent to a party by first class registered post, hand delivery or fax to the address of that party set out on page 1 of this agreement or as otherwise notified by that
12.2 Any notice, consent or other document shall be deemed to have been duly received 48 hours from the time of posting if despatched by first class, registered post, on transmission if delivered by fax or on or at the time of actual delivery if delivered by hand.
13. Governing Law
13.1 This agreement shall be governed by and construed in accordance with English Law.
13.2 Any dispute arising under or in connection with this agreement shall be subject to the exclusive jurisdiction of the English courts, to which each of the parties irrevocably submits.
14. Schedule Member Benefits
The opportunity to place Mortgage Business via a panel of Lenders offering enhanced procuration fees and exclusive products.
Access to Next Intelligence general & protection Insurance Panel.
Access to a Next Intelligence dedicated broker support team, providing various services including criteria matching, rate chasing, new product updates and expert help with difficult cases.