TERMS AND CONDITIONS RELATING TO THE PROVISION OF OMNI MORTGAGE SERVICES
These Terms and Conditions (“Terms and Conditions”) govern the Agreement between Participating Member and Omni Mortgage Club Limited (“Omni”) in relation to Omni Mortgage Services and General Insurance Services.
DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions the following words have the following meanings:
“Adviser” means any adviser entitled under its binding contract with Participating Member to advise Customers in relation to Products and any acts or omissions of Adviser shall be deemed acts or omissions of Participating Member.
“Agreement” means these Terms and Conditions, together with a fully executed Omni Mortgage Club Application Form, as well as any commercial terms agreed in writing between Omni and Participating Member in respect of Omni Mortgage Services and/or General Insurance Services.
“Applicable Laws” means any applicable law, statute, regulation, by-law, subordinate legislation, all binding court orders, judgments or decrees, all applicable direction, policy, guidance, industry codes of practice or standard, rule or order made or given by any relevant regulator or relevant authority having jurisdiction over that party or any of the party’s assets, resources, or business in any jurisdiction, from time to time, in each case applicable to or binding upon that party.
“AR Firm” means an appointed representative firm which has an agreement with Principal Firm which permits AR Firm to carry on regulated activities under Principal Firm’s authorisation and Principal Firm has confirmed that it will take responsibility for the acts and omissions of AR Firm, which acts and omissions shall be deemed those of Principal Firm.
“Business Day” means any day other than a Saturday or Sunday, on which banks are open for business in London.
“Clawback” means the repayment to Provider Partner of either Procuration Fee or Commission that (a) should not have been paid; (b) is repayable under clause 7 or clause 8; and/or (c) is repayable under any terms of business between Participating Member with a Provider Partner and/or any agreement between Omni with a Provider Partner.
“Commencement Date” means the date upon which the Agreement comes into force which, unless specified otherwise, is the date notified to Participating Member by Omni subsequent to Omni’s acceptance of application for Participating Membership.
“Commission” means commission paid by a Provider Partner in connection with a General Insurance Product, payable in accordance with clause 6 and any terms of business between Participating Member with a Provider Partner and/or any terms of business between Omni with a Provider Partner. Commission is deemed to be inclusive of any Taxes that may be payable.
“Complaint” means any expression of dissatisfaction, whether oral or written, and whether justified or not, by or on behalf of a complainant, which arises in connection with any Product or Policy, or the provision of any activity provided for by the Agreement and involves an allegation that the complainant has suffered, or may suffer financial loss, material distress or material inconvenience.
"Confidential Information" means any and all information of a confidential or sensitive nature (whether or not marked as such) relating to the other party, which may come into a party’s possession or into the possession of any of its Representatives (whether in writing, orally or by another means), as a result of or in connection with the Agreement and any and all information which has been and which may be derived or obtained from any Confidential Information.
"Customer" means an individual who has been introduced to any Product by Participating Member following a consultation with an Adviser or an AR Firm.
"Data Protection Legislation" means all applicable data protection, privacy and electronic marketing legislation (as amended, consolidated or re-enacted from time to time), including the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, UK GDPR, any codes of practice relating to the same, and any guidance published by the UK Information Commissioner’s Office (“ICO”) from time to time. “UK GDPR” has the meaning given in section 3 of the Data Protection Act 2018. The terms “controller”, “processor”, “data subject”, “personal data” and “processing” (and cognate terms) shall have the meanings given to them in Article 4 of the UK GDPR.
“Date of Termination” means the date upon which the Agreement ends.
"FCA" means the Financial Conduct Authority and/or any successor body.
“Firm” means a broker firm operating in the UK, permitted by the FCA to carry out regulated activities and includes Principal Firms but does not include AR Firms.
“Force Majeure Event” means any event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Agreement.
"FSMA" means the Financial Services and Markets Act 2000, as amended from time to time and the rules and regulations made or having effect under it.
“General Insurance Product” means any general insurance contract administered by a Provider Partner from time to time, including but not limited to accident, sickness and unemployment cover, commercial, travel, buildings and home and contents cover.
“General Insurance Service Commencement Date” means the date upon which Participating Member is first provided with access to General Insurance Services by Omni, subsequent to Participating Member accepting these Terms and Conditions.
“General Insurance Services” means the services, (including access to the Omni General Insurance Link, the Omni General Insurance Panel, the Omni General Insurance helpdesk, as well as Omni General Insurance events), supplied under the Agreement and which enables Participating Member to, amongst other things, receive Commission on General Insurance Products purchased by Participating Member’s Customers from Provider Partners.
“Group Companies” means in respect of a person, its Holding Companies, its Subsidiaries and the Subsidiaries of any of its Holding Companies from time to time “Holding Company” and “Subsidiary” having the meanings set out in section 1159 Companies Act 2006.
"Intellectual Property Rights" means all intellectual property rights of any nature including patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, moral rights, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of Confidential Information (including know-how and trade secrets) and proprietary knowledge, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Liability” and “Liabilities” means all costs and expenses, losses, liabilities, obligations, damages, deficiencies, penalties, interest and expenses, (including reasonable fees and expenses of solicitors and other professionals and specialists) and other adverse effects resulting from any and all allegations, claims, judgments or causes of action. “Liable” shall be interpreted accordingly.
“Mortgage Product” means any regulated mortgage agreement offered by a Provider Partner from time to time.
“Mortgage Service Commencement Date” means the date upon which Participating Member is first provided with access to Omni Mortgage Services by Omni, subsequent to Participating Member accepting these Terms and Conditions.
“Omni General Insurance Link” means the General Insurance page of the Omni Website which includes access to General Insurance Products and Provider Partner point-of-sale systems for Participating Member.
Omni General Insurance Panel is the panel of Provider Partners appointed by Omni to offer General Insurance Products to Participating Members through which Participating Member receives Commission on General Insurance Products purchased by Participating Member’s Customers.
Omni Mortgage Club Application Form means the Omni form whether in paper or online format titled “Omni Mortgage Club Application Form”, (as amended, varied or supplemented from time to time), which inter alia is (a) an application form for Participating Membership; (b) a request for Omni Mortgage Services and/or General Insurance Services; and (c) includes acceptance of these Terms and Conditions, which acceptance may be by electronic signature on an electronic copy, by wet signature on a hard copy or acceptance by electronic means by ticking a box where indicated when completing the Omni Mortgage Club Application Form online.
Omni Mortgage Club Panel is the panel of Provider Partners appointed by Omni to offer Mortgage Products to Participating Members through which Participating Member receives Procuration Fees on Mortgage Products purchased by Participating Member’s Customers.
“Omni Mortgage Services” means the mortgage services, (including access to the Omni Mortgage Club Panel, the Omni Mortgage Club helpdesk, as well as Omni Mortgage Club events), supplied under the Agreement and which enable Participating Members to, amongst other things, receive Procuration Fees on Mortgage Products purchased by Participating Member’s Customers, from Provider Partners.
“Omni Website” means https://www.omni-mortgageclub.co.uk
“Participating Member” means the Firm which has completed and executed an Omni Mortgage Club Application Form and which has been accepted as a member of Omni either for Omni Mortgage Services and/or for General Insurance Services. “Participating Membership” will be interpreted accordingly.
“Participating Member Data” means data provided by Participating Member to Omni including pursuant to clause 9.1, Audit Documents and Shared Personal Data.
"Policy" means a policy in respect of a General Insurance Product sold by a Provider Partner to a Customer as a result of an application provided to Provider Partner by Participating Member, including through an Adviser or AR Firm of Participating Member.
"Policyholder" means anyone who, for the time being is the legal holder of a Policy including any person to whom, under the Policy, a sum is due, a periodic payment is payable or such other benefit is to be derived.
“PRA” means the Prudential Regulation Authority.
“Principal Firm” means a firm which has been granted FCA permission directly to carry out one or more regulated activities either as a mortgage broker or a general insurance broker, which is responsible for its own actions and the actions of any and all of its Advisers and AR Firms with which it has an agreement permitting those AR Firms to carry on regulated activities under Principal Firm’s authorisation, including in connection with this Agreement.
“Procuration Fee” means the fee paid by a Provider Partner in connection with Participating Member providing Mortgage Product applications from Customers for the purpose of those Customers entering into mortgage transactions with Provider Partner, and which Procuration Fee is payable in accordance with clause 5 and any terms of business between Participating Member with a Provider Partner and/or any terms of business between Omni with a Provider Partner. Procuration Fees are deemed to be inclusive of any Taxes that may be payable.
“Products” means one or more Mortgage Products and/or General Insurance Products.
“Provider Partner” means a party that has entered into an agreement with Omni to offer Products to Participating Members paying either a Procuration Fee or Commission to Participating Members and/or to Omni.
“Regulatory Authority” means any regulator or governmental or regulatory body, including but not limited to the FCA, the PRA and the ICO which has responsibility for regulating the parties, or either of them and/or either party’s activities under this Agreement.
"Regulatory Requirements" means all applicable statutes, statutory instruments, orders, regulations and codes of practice (whether or not having the force of law) in force from time to time, and in particular but without limitation the requirements, rules, regulations, guidance and codes of practice of FSMA and the FCA.
“Representatives” in respect of a party means any of that party’s and any of its Group Companies’ respective officers, directors, employees, consultants, sub-contractors, agents and professional advisers and “Representative” means any of them.
Shared Personal Data means the personal data to be shared between the parties under this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: (a) Adviser: name, email address and telephone number; (b) AR Firm: AR Firm name, address, company number, FCA number, contact name, telephone number and e-mail address; and (c) Customer: name only (and for the avoidance of doubt, no other identifying information), and details of Mortgage Products and/or Policies purchased.
“Taxes” means value added tax or any equivalent, or other applicable tax chargeable in the UK.
“Term” has the meaning set out in clause 11.1.
1.2 Any reference in the Agreement to a statute, statutory instrument, rule, or regulation shall be construed as a reference to such statute, statutory instrument, rule, or regulation as amended, re-enacted or replaced from time to time.
1.3 Any reference in the Agreement to another agreement, schedule or document shall be construed as a reference to that other agreement, schedule or document as amended or supplemented from time to time.
1.4 Any reference in the Agreement to a clause, sub-clause or paragraph shall be construed as a reference to a clause, sub-clause or paragraph of these Terms and Conditions.
1.5 The headings used in the Agreement are for reference purposes only and do not affect its interpretation.
1.6 A reference to a “person” includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and any other legal or commercial entity or undertaking and its personal representatives, successors and permitted assigns.
1.7 A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.8 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Words denoting any gender will include a reference to each other gender
1.9 A reference to “writing” or “written” includes e-mail.
1.10 Any words following the terms “including”, “includes”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. GENERAL
2.1 Each party warrants and undertakes that:
2.1.1 it has full power and authority to enter into the Agreement and to perform its obligations thereunder;
2.1.2 it shall perform its obligations under the Agreement in compliance with all Applicable Laws and Regulatory Requirements; and
2.1.3 it will comply with all Applicable Laws, including:
2.1.3.1 all applicable requirements of the Data Protection Legislation and UK GDPR;
2.1.3.2 all Applicable Laws relating to anti-bribery and anti-corruption, including without limitation, the Bribery Act 2010;
2.1.3.3 all Applicable Laws relating to anti-slavery, including without limitation, the Modern Slavery Act 2015; and
2.1.3.4 all Applicable Laws relating to money laundering and anti-tax evasion facilitation.
2.2 Breach of clause 2.1 shall be deemed a material breach of the Agreement entitling the non-defaulting party to terminate the Agreement immediately without prejudice to any other rights or remedies it may have in respect of such breach.
PROVISION OF OMNI MORTGAGE SERVICES AND GENERAL INSURANCE SERVICES
3.1 Subject to Participating Member complying with its obligations under the Agreement and in particular agreeing to clause 3.2 below, Omni shall, where applicable, provide Omni Mortgage Services to Participating Member in accordance with the Agreement, with effect from the Mortgage Service Commencement Date until the Date of Termination.
3.2 Participating Member acknowledges and agrees that in consideration for Omni providing Omni Mortgage Services to Participating Member, including facilitating Procuration Fees for Participating Member from Provider Partners, Omni shall, unless otherwise agreed between Omni and Provider Partner, receive a share of each and every Procuration Fee paid by Provider Partners in respect of Mortgage Products sold to Participating Member’s Customers, as set out in clause 5, below.
3.3 Subject to Participating Member complying with its obligations under the Agreement and in particular agreeing to clause 3.4 below, Omni shall, where applicable, provide General Insurance Services to Participating Member in accordance with the Agreement, with effect from the General Insurance Service Commencement Date until the Date of Termination.
3.4 Participating Member acknowledges and agrees that in consideration for Omni providing General Insurance Services to Participating Member, including facilitating Commission for Participating Member from Provider Partners, Omni shall, unless otherwise agreed between Omni and Provider Partner, receive a share of Commission paid by Provider Partners in respect of General Insurance Products sold to Participating Member’s Customers, as set out in clause 6, below.
3.5 Participating Member acknowledges and agrees that these Terms and Conditions supersede any previously agreed terms and conditions between Omni and Participating Member relating to the supply of Omni Mortgage Services and/or General Insurance Services.
3.6 For the avoidance of doubt, any marketing and other promotional materials relating to Omni Mortgage Services and/or General Insurance Services are for illustrative purposes only and do not form part of the Agreement.
4. PROVIDER PARTNERS
4.1 The parties agree that:
4.1.1 Provider Partners shall not be obliged to accept business from Participating Member;
4.1.2 any business accepted by Provider Partner which has been referred either through an Adviser or an AR Firm of Participating Member shall be deemed to be business of Participating Member and any Procuration Fee or Commission due in respect of such business shall be due to Participating Member and not to Adviser or AR Firm;
4.1.3 the terms of this Agreement shall not create a direct contractual relationship between Provider Partner and Participating Member;
4.1.4 the contractual relationship between Provider Partner and Participating Member shall be governed by separate and distinct terms of business between Provider Partner and Participating Member;
4.1.5 where required by Provider Partner, Participating Member shall agree additional terms of business governing any and all business referred to Provider Partner by any Adviser or AR Firm of Participating Member;
4.1.6 Omni shall have no involvement in terms of business between Provider Partner and Participating Member;
4.1.7 Omni has no authority to bind any Provider Partner in any way and may not make or enter into any contracts or commitments or incur any liability for or on behalf of any Provider Partner; and
4.1.8 Provider Partners may share with Omni, data relating to Participating Member volume and value of business, Procuration Fees, Commission, Commission Share, Clawbacks, Complaints and lapsed Policies for the purposes of Omni checking the accuracy of Participating Member’s Audit Documents and compliance with the Agreement and for the purposes of Omni generating Data Insight Reports and performing its obligations under the Agreement.
5. PROCURATION FEES
5.1 Any and all Procuration Fees in connection with the Agreement shall be permissible procuration fees and shall be charged and paid in accordance with all Regulatory Requirements and Applicable Laws, as amended from time to time.
5.2 Clause 27 shall apply in the event that any Procuration Fee is or becomes invalid, illegal or unenforceable.
5.3 Clause 22 shall apply in the event that a dispute arises concerning the validity, legality and/or enforceability of a Procuration Fee.
5.4 Omni and Participating Member agree that from the Mortgage Service Commencement Date, where a Customer enters into a Mortgage Product with a Provider Partner, and that Mortgage Product application was provided to Provider Partner by Participating Member, including through an Adviser or AR Firm of Participating Member, referencing or indicating Participating Member’s Participating Membership, Participating Member and Omni shall each be entitled to receive its relevant share of any and all Procuration Fees payable by Provider Partner in respect of that Mortgage Product (“Procuration Fee Share”).
5.5 Participating Member acknowledges and agrees that (a) the amount of Procuration Fees shall be determined by and may be changed from time to time by any Provider Partner; and (b) the percentage of the Procuration Fee Share to be received by and between Participating Member and Omni may be amended by Omni from time to time.
5.6 Procuration Fee information is made available on Omni’s Website based upon information provided by Provider Partners to Omni from time to time. Notwithstanding that Omni will use reasonable endeavours to display accurate, current and complete Procuration Fee information on Omni’s Website, Participating Member acknowledges that Omni has no responsibility for Provider Partner delays in providing updated Procuration Fee information to Omni. Omni’s only obligations to Participating Member in respect of the Procuration Fee information displayed on Omni’s Website is to ensure that the relevant Procuration Fee information is conveyed to the same level of accuracy as received from Provider Partners and that it is displayed promptly upon receipt from Provider Partners.
5.7 Unless otherwise agreed with a Provider Partner, Provider Partners shall pay to Omni only, the total amount of any and all Procuration Fees due to both Omni and Participating Member in respect of Mortgage Products. Provider Partner shall provide regular statements to Omni in respect of any and all Procuration Fees paid to Omni, providing where possible and applicable the following details (a) each separate and distinct Procuration Fee amount paid to Omni, (b) name of Customer, Adviser, AR Firm and Participating Member to which each Procuration Fee relates, (c) Mortgage amount, and (d) date upon which Customer entered into relevant Mortgage Product to which Procuration Fee relates (“Provider Partner Procuration Fee Statement”).
5.8 Omni shall pay Participating Member’s Procuration Fee Share to such bank account as is notified by Participating Member to Omni from time to time and such bank account shall be in the name of Participating Member. For the sake of clarity, Omni will not pay any Procuration Fees to Advisers or AR Firms.
5.9 Participating Member shall inform Omni as soon as practicable in the event of a change in its bank account details.
5.10 Within seven (7) days of Omni receiving both a Procuration Fee and relevant Provider Partner Procuration Fee Statement from Provider Partner, Omni shall pay Participating Member’s Procuration Fee Share to Participating Member.
5.11 In respect of each and every Procuration Fee Share paid by Omni to Participating Member, Omni shall provide a statement including where possible and applicable, the following details: (a) Mortgage amount, (b) date of transaction, (c) Participating Member’s Procuration Fee Share, (d) relevant Provider Partner, (e) name of Customer and (f) name of AR Firm or Adviser (“Procuration Fee Statement”).
6. COMMISSION
6.1 Any and all Commission in connection with the Agreement shall be permissible commission and shall be charged and paid in accordance with all Regulatory Requirements and Applicable Laws, as amended from time to time.
6.2 Clause 27 shall apply in the event that any Commission is or becomes invalid, illegal or unenforceable.
6.3 Clause 22 shall apply in the event that a dispute arises concerning the validity, legality and/or enforceability of a Commission.
6.4 Omni and Participating Member agree that from the General Insurance Service Commencement Date, where a Customer purchases a General Insurance Product from a Provider Partner, and that General Insurance Product application was provided to Provider Partner by Participating Member, including through an Adviser or AR Firm of Participating Member, referencing or indicating its Participating Membership, Participating Member and Omni shall each be entitled to receive a share of any and all Commissions payable by Provider Partner in respect of that General Insurance Product (“Commission Share”).
6.5 Participating Member acknowledges and agrees that (a) the amount of Commission shall be determined by and may be changed from time to time by any Provider Partner; and (b) the percentage of the Commission Share to be received by and between Participating Member and Omni may be amended by Omni from time to time.
6.6 Commission information is made available on Omni’s Website based upon information provided by Provider Partners to Omni from time to time. Notwithstanding that Omni will use reasonable endeavours to display accurate, current and complete Commission information on Omni’s Website, Participating Member acknowledges that Omni has no responsibility for Provider Partner delays in providing updated Commission information to Omni. Omni’s only obligations to Participating Member in respect of the Commission information displayed on Omni’s Website is to ensure that the relevant Commission information is conveyed to the same level of accuracy as received from Provider Partners and that it is displayed promptly upon receipt from Provider Partners.
6.7 Provider Partner shall pay Participating Member Commission Share due to Participating Member to such bank account as is notified by Participating Member to Provider Partner from time to time and such bank account shall be in the name of Participating Member.
6.8 Participating Member shall be solely responsible for its Commission payment arrangements with Provider Partners and with AR Firms. Omni shall have no obligations in respect of, nor any involvement in the payment of Participating Member Commission Share by Provider Partners to Participating Member or any payment of Commission by Participating Member to AR Firms.
7. CLAWBACK OF PROCURATION FEE
7.1 Participating Member acknowledges and accepts that Procuration Fees paid by Provider Partner may be subject to Clawback by Provider Partner under certain conditions, including in the event that it is paid in duplicate or in error, or pursuant to any terms of business entered into by and between Participating Member and Provider Partner and/or by and between Omni and Provider Partner.
7.2 In the event that any part or all of a Procuration Fee is repayable to a Provider Partner, Omni shall notify Participating Member as soon as practicable in writing (“Repayment Notice”) of the relevant amount repayable by Participating Member (“Repayment Amount”).
7.3 Omni may set-off any recovery of Repayment Amount against any sums due and payable to Participating Member under this Agreement and may, where Omni determines that no set-off is possible, also require Participating Member to pay any Repayment Amount due in full without deduction within thirty (30) days of receipt of a Repayment Notice.
7.4 Where Participating Member fails to make payment in full within thirty (30) days of receipt of Repayment Notice, without prejudice to its rights under this Agreement, Omni may charge interest on the outstanding amount at a rate of 2% above the Bank of England base rate from time to time. The interest shall be calculated and applied from the date the amount originally became due until the date on which payment of the amount outstanding is made. Participating Member will also pay to Omni such reasonable legal fees, costs and / or expenses it incurs as a result of seeking to recover repayment of Repayment Amount.
8. CLAWBACK OF COMMISSION
8.1 Participating Member acknowledges and accepts that Commission paid by Provider Partner and received by Participating Member may be subject to Clawback by Provider Partner under certain conditions, including in the event that it is paid in duplicate or in error, or pursuant to any terms of business entered into by and between Participating Member and Provider Partner.
8.2 Omni and Participating Member agree that:
8.2.1 Omni shall not be liable for any repayment of Commission due to Provider Partner by Participating Member; and
8.2.2 Participating Member shall not be liable for any repayment of Commission due to Provider Partner by Omni.
8.3 Omni and Participating Member agree that:
8.3.1 Omni shall have no obligations in respect of, nor any involvement in the Clawback of Commission by Provider Partner from Participating Member; and
8.3.2 Participating Member shall have no obligations in respect of, nor any involvement in the Clawback of Commission by Provider Partner from Omni.
9. PARTICIPATING MEMBER OBLIGATIONS AND PROVISION OF INFORMATION
9.1 Participating Member shall provide a list of its Advisers and AR Firms to Omni in the Omni Mortgage Club Application Form on or around the Commencement Date and quarterly thereafter.
9.2 Participating Member will notify Omni in writing, as soon as practicable, in the event that there is a change to its contact details, its good standing, or its status, including its status as a broker firm operating in the UK permitted by the FCA to carry out regulated activities.
9.3 Participating Member acknowledges and agrees that use of any software, platforms and/or systems provided or facilitated by Omni pursuant to the Agreement is subject to and governed by the relevant licence terms and acceptable use policies applicable to such software, platforms and/or systems (as updated, amended and replaced from time to time) (“Usage Terms”). In that respect, Participating Member agrees to comply with all appliable Usage Terms.
10. SUSPENSION
10.1 Without prejudice to the other provisions of the Agreement, Omni reserves the right to suspend Participating Member’s access to Omni Mortgage Club Panel and/or Omni General Insurance Panel and/or software, platforms and/or systems if:
10.1.1 at any time Participating Member is in breach of the Agreement;
10.1.2 Participating Member does not comply with all applicable Usage Terms;
10.1.3 in the reasonable opinion and at the sole discretion of Omni, there has been a high lapse rate in Participating Member’s Customer’s Policies for six (6) months continuously, (“High Lapse Rate”) and the Commission paid in connection with the lapsed Policies is subject to Clawback;
10.1.4 in the reasonable opinion and at the sole discretion of Omni, the number of Complaints received by one or more Provider Partners over a continuous period of six (6) months, in relation to activities of Participating Member, from either Customers, Policyholders and/or prospective policyholders, becomes unacceptably high (“High Complaint Rate”); or
10.1.5 at any time Omni is required to do so by any competent Regulatory Authority or governmental body.
10.2 Omni shall as soon as reasonably practicable (i) notify Participating Member of the suspension, the reason for the suspension, and its expected duration; and (ii) reinstate access to Omni Mortgage Club Panel and/or Omni General Insurance Panel and/or software, platforms and/or systems, once the ground(s) for suspension no longer exist.
10.3 In the event that Participating Member is in breach of the Agreement or applicable Usage Terms, Participating Member shall remedy that breach within a period of thirty (30) days after being notified in writing to do so by Omni.
10.4 In the event that there is a High Lapse Rate:
10.4.1 Omni shall send written notification to Participating Member of the number and percentage of lapsing Policies resulting in Clawback of Commission in the previous six (6) months (“Lapsing Policy Notification”);
10.4.2 the parties shall arrange to meet either in person or online, at a mutually agreeable time on a mutually agreeable date, not more than fourteen (14) days after the date of the Lapsing Policy Notification (“Lapsing Policy Meeting”) and agree upon a course of action to reduce the number of Participating Member’s Customers’ Policies that lapse;
10.4.3 where agreement cannot be reached under 10.4.2, clause 22 will apply; and
10.4.4 in the event that High Lapse Rate continues for the duration of the three (3) months immediately following Lapsing Policy Meeting, Omni may, at its sole discretion either suspend Participating Member’s access to Omni General Insurance Panel, or terminate the Agreement, as set out in clause 11, below.
10.5 In the event that there is a High Complaint Rate:
10.5.1 Omni shall send written notification to Participating Member of the number of Complaints received in connection with Participating Member, its Customers and/or Policies in the previous six (6) months (“Complaints Notification”);
10.5.2 the parties shall arrange to meet either in person or online, at a mutually agreeable time on a mutually agreeable date, not more than fourteen (14) days after the date of the Complaints Notification (“Complaints Meeting”) and agree upon a course of action to reduce the number of Complaints;
10.5.3 where agreement cannot be reached under 10.5.2, clause 22 will apply; and
10.5.4 in the event that High Complaint Rate continues for the duration of the three (3) months immediately following Complaints Meeting, Omni may, at its sole discretion either suspend Participating Member’s access to Omni General Insurance Panel and/or to Omni Mortgage Club Panel, or terminate the Agreement, as set out in clause 11, below.
10.6 Omni shall not be in breach of the Agreement if and to the extent it is exercising its rights of suspension in accordance with this clause 10 or as otherwise provided in the Agreement. Suspension in accordance with this clause 10 shall be without prejudice to any other rights and remedies that Omni may have.
10.7 During any period of suspension of Participating Member, Omni and Participating Member shall continue to be entitled to any and all Procuration Fees and Commission due and payable from Provider Partners in connection with Products.
11. TERM AND TERMINATION
11.1 The Agreement shall commence on the Commencement Date and, unless terminated as provided in this clause 11, shall continue. The period from the Commencement Date to the Date of Termination of the Agreement shall be the “Term”.
11.2 The parties may mutually agree in writing to terminate the Agreement on a specified date.
11.3 Either party may terminate the Agreement by providing no fewer than thirty (30) days’ written notice to the other.
11.4 Without affecting any other rights or remedies available to it, a party may terminate the Agreement with immediate effect by giving written notice to the other party if:
11.4.1 the other party commits a material breach of any term of the Agreement which breach is irremediable, or if such breach is remediable, the other party fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
11.4.2 the performance of the Agreement becomes illegal under Applicable Laws, or if termination is required by any competent Regulatory Authority;
11.4.3 the other party has its regulatory permissions withdrawn or amended so it ceases to be appropriately authorised under Regulatory Requirements and is no longer able to carry out its business as foreseen by the Agreement; or
11.4.4 there is evidence of improper or fraudulent behaviour by the other party.
11.5 Omni may terminate the Agreement with immediate effect in the event that:
11.5.1 the High Complaint Rate continues for the duration of the three (3) months immediately following Complaints Meeting; or
11.5.2 the High Lapse Rate continues for the duration of the three (3) months immediately following Lapsing Policy Meeting.
11.6 Participating Member acknowledges and accepts that Omni shall as soon as reasonably practicable, notify Provider Partners of the termination of the Agreement.
12. CONSEQUENCES OF TERMINATION
12.1 Upon termination of the Agreement:
12.1.1 all rights to use Omni Mortgage Services and General Insurance Services pursuant to the Agreement shall immediately and automatically terminate; and
12.1.2 Participating Member shall no longer have any right to promote and sell Products offered by Provider Partners to Customers and consequently receive relevant Procuration Fees or Commission.
12.2 Termination of the Agreement shall not affect either party’s rights, remedies, obligations or Liabilities that have accrued up to the Date of Termination under or in relation to the Agreement, including any entitlement to Procuration Fees and/or Commission.
12.3 For the avoidance of doubt, following termination of the Agreement, Participating Member and Omni shall continue to be entitled to and receive any and all Procuration Fees and/or Commission due from and payable by Provider Partners in relation to Product transactions commenced by Participating Member prior to the termination of the Agreement.
12.4 Any provision which expressly or by implication is intended to come into force or remain in force on, around or after termination shall continue in full force and effect.
13. COMPLAINTS
13.1 In relation to Complaints connected with this Agreement, each party shall (i) notify the other party as soon as practicable of any Complaint that it receives; and (ii) notify the other party as soon as practicable of any Complaint received by Provider Partner and of which the notifying party has been made aware; and such notification shall be in accordance with any applicable FCA and PRA guidelines for notification periods.
13.2 The parties shall:
13.2.1 ensure that all Complaints are handled in accordance with any and all Regulatory Requirements;
13.2.2 cooperate in the handling of any Complaints, including in the provision of relevant information to one another; and
13.2.3 provide any other reasonable assistance requested by one party to the other party, in order that the requesting party may comply with all its obligations under the Agreement and/or Regulatory Requirements.
14. AUDIT
14.1 During the Term, Omni will monitor the activities and performance of Participating Member in connection with the Agreement, including, but not limited to the following:
14.1.1 Participating Member’s compliance with its obligations;
14.1.2 volume and percentage of Customer Policies lapsing;
14.1.3 Clawback rates for Participating Member and Omni;
14.1.4 volume, type and handling of Complaints;
14.1.5 new business levels;
14.1.6 amendment of terms of business between Participating Member with Provider Partners; and
14.1.7 termination of relationship between Participating Member and Provider Partners.
14.2 Participating Member shall keep separate accounts and records in relation to and in connection with the Agreement, giving accurate, up to date and adequate details of (a) all Procuration Fees and Commission received; (b) any and all Clawbacks; (c) any and all lapsed Policies; and (d) any and all Complaints received (the “Audit Documents”).
14.3 Upon receiving a written request from Omni, Participating Member shall, as soon as practicable, allow Omni, its Representatives and any auditors of, or other professional advisers to Omni, to access Participating Member’s Audit Documents, to the extent reasonably required in order to check (a) the accuracy of the Procuration Fees, Commission and/or Clawbacks; (b) the number of lapsed Policies; (c) the number of Complaints; and (d) Participating Member’s compliance with the Agreement.
14.4 Participating Member shall provide Omni, its Representatives and its auditors and other professional advisers with all reasonable co-operation and assistance in relation to each audit.
14.5 Participating Member acknowledges and accepts that in the event that Omni has knowledge of any improper or fraudulent behaviour by Participating Member relating to a Provider Partner’s Products, Omni may, unless prohibited by Applicable Laws or Regulatory Requirements, notify the relevant Provider Partner.
DATA PROTECTION
15.1 Each party and its respective Representatives shall comply with all applicable requirements under the Data Protection Legislation.
15.2 The parties agree they are independent data controllers and warrant that they shall comply, and will assist the other party in complying, with their obligations under the Data Protection Legislation which arise in connection with this Agreement. In particular, each party shall:
15.2.1 where requested to, provide the other party with reasonable assistance in complying with any data subject access request;
15.2.2 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications and data protection impact assessments;
15.2.3 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, Shared Personal Data;
15.2.4 notify the other party without undue delay on becoming aware of any material breach of the Data Protection Legislation that directly relates to Shared Personal Data;
15.2.5 maintain complete and accurate records and information to demonstrate its compliance with this clause 15; and
15.2.6 provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach and a review of the parties’ compliance with the Data Protection Legislation, if requested by the other party.
15.3 Where the parties share between them any personal data under this Agreement, they will ensure that such disclosure is compliant with Data Protection Legislation. Each party shall:
15.3.1 ensure that it has all necessary notices and consents in place to enable lawful transfer of Shared Personal Data; and
15.3.2 give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing.
15.4 Any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
15.5 Participating Member acknowledges that Omni has no control over or responsibility for any processing of personal data by Provider Partners in connection with terms of business between Participating Member with a Provider Partner and it is Participating Member’s responsibility to agree terms directly with Provider Partners in respect of any processing of such data.
16. DATA INSIGHT REPORTS
16.1 Participating Member acknowledges and agrees that Omni is entitled to anonymise Participating Member Data, information contained within Commission statements and Procuration Fee Statements, for the purpose of generating Data Insight Reports subject to all Applicable Laws and in particular the requirements concerning the consolidation, anonymisation and use of data.
16.2 Participating Member hereby grants to Omni a non-exclusive, sub-licensable, worldwide, royalty-free, irrevocable licence to use the Participating Member Data for the purpose of generating and distributing Omni anonymised and aggregated data insight reports (“Data Insight Reports”) including to Participating Members, Provider Partners and to Omni’s other third party customers. In distributing such Data Insight Reports, Omni shall ensure that the Data Insight Reports are not capable of identifying Participating Member, AR Firms, Advisers or Customers.
16.3 Participating Member hereby acknowledges and agrees that any and all Data Insight Reports generated pursuant to this clause 16 (and the Intellectual Property Rights subsisting therein) shall be owned by Omni with full title guarantee and free from all third party encumbrances.
17. FORCE MAJEURE
17.1 A party shall not be in breach of the Agreement nor Liable for delay, prevention or hindrance in performing or failure to perform its obligations under the Agreement if such delay or failure is caused by a Force Majeure Event, provided that it:
17.1.1 notifies the other party in writing as soon as reasonably practicable specifying the nature of the Force Majeure Event and stating the anticipated delay in the performance of the Agreement; and
17.1.2 uses best endeavours to mitigate the effect of such Force Majeure Event on the performance of its obligations.
17.2 For the avoidance of doubt, any failure or delay by Omni in performing its obligations under the Agreement which results from a failure or delay by Provider Partner and/or any other third party shall be regarded as due to a Force Majeure Event.
18. CONFIDENTIALITY
18.1 Each of the parties shall ensure that Confidential Information of the other party is kept confidential and shall not make or cause or permit to be made any use of, or disclose of any such Confidential Information except to the extent necessary to perform its obligations under the Agreement, or as expressly permitted by the Agreement.
18.2 Each party shall be permitted to disclose Confidential Information of the other party to the extent that it is required to do so by law or by any public, governmental, supervisory or Regulatory Authority or by any legally binding order of any court or tribunal given in any such case, provided that:
18.2.1 it shall give the other party prompt notice of the disclosure (where lawful and practical to do so) so that the other party has sufficient opportunity, where possible, to prevent or control the manner of disclosure by appropriate legal means;
18.2.2 the disclosure or use is limited strictly to those parts of the other party’s Confidential Information which are required to be disclosed pursuant to 18.2; and
18.2.3 each party shall use reasonable endeavours to ensure the recipient of such Confidential Information is made aware that such information is confidential.
18.3 The obligations and restrictions contained in this clause 18 shall not apply to any information which:
18.3.1 the recipient can show had entered the public domain at the time Confidential Information was disclosed to it, or at any time thereafter, not as a result of any breach of clause 18;
18.3.2 the recipient can show was in its lawful possession at the time Confidential Information was disclosed to it and was not acquired by it under an obligation of confidence to the disclosing party or a representative of the disclosing party;
18.3.3 the recipient can show was received by it, after the time Confidential Information was disclosed to it, from a third party (other than the disclosing party or a representatives of the disclosing party) who could lawfully do so and who did not derive it from Confidential Information disclosed by the disclosing party or a representative of the disclosing party;
18.3.4 the parties have agreed in writing shall not be subject to the obligations and restrictions contained in this clause 18; or
18.3.5 can be demonstrated to have been developed by the recipient independently of the Confidential Information disclosed to it by the disclosing party.
18.4 Each party may disclose Confidential Information to any of its Representatives or to its Group Companies or their respective Representatives, ensuring that any and all recipients of Confidential Information are aware of the duty of confidentiality under this clause.
19. INTELLECTUAL PROPERTY RIGHTS
19.1 Each party shall retain all interest, rights and entitlement to its own Intellectual Property.
19.2 Each party represents and warrants to the other that:
19.2.1 it owns or is licensed to use all Intellectual Property Rights which it uses or exploits in the performance of its obligations under the Agreement;
19.2.2 it has obtained all necessary permissions, consents, waivers and licences required from any third party (including all necessary or appropriate regulatory consents) in order for it to lawfully perform its obligations under the Agreement: and
19.2.3 the use by the other party in accordance with the Agreement of any Intellectual Property Rights licensed by it in the performance of its obligations under the Agreement shall not breach the rights, including Intellectual Property Rights, of any third party.
19.3 Neither party shall use any Intellectual Property Rights of the other party or that party’s Group Companies without prior written consent. In the event that a requested party grants written consent to use its Intellectual Property Rights to the requesting party, the requested party may stipulate the terms upon which the requesting party may use the relevant Intellectual Property Rights and may require that a separate and distinct agreement be entered into by the parties to govern the use of those Intellectual Property Rights.
19.4 Notwithstanding any other provision of the Agreement, Participating Member acknowledges and accepts that Omni does not and does not purport to grant to Participating Member any rights, including Intellectual Property Rights, in or to any of the information supplied by Provider Partners. Participating Member acknowledges that to the extent that it requires any licence in respect of such information, it must obtain it from the relevant Provider Partner.
20. LIABILITY
20.1 Nothing in the Agreement will exclude or limit either party's Liability in respect of: (a) death or personal injury caused by the negligence of that party; (b) fraud (including fraudulent misrepresentation); or (c) any Liability which may not otherwise be lawfully excluded or limited.
20.2 Subject to clause 20.1, clause 20.3 and any indemnities expressly provided in the Agreement, neither party shall be Liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for: (a) any loss of revenue, profit, business, anticipated savings, goodwill, reputation, contract, data, use of equipment or process or any wasted management time; or (b) any indirect, economic, special or consequential loss whatsoever.
20.3 Subject to clause 20.1 and any indemnities expressly provided in the Agreement, and except in relation to payment or repayment of Procuration Fees between the parties to this Agreement, each party’s Liability to the other party in contract, tort (including negligence and breach of statutory duty) or otherwise shall be limited to five thousand pounds Sterling (£5,000) per year, regardless of the number of events giving rise to Liability.
20.4 Omni shall have no Liability for third party services, information, materials, the content of websites, or the accuracy or fitness for purpose of any Product.
20.5 As provided in clause 17 above, neither party shall be Liable for any failure or delay in performing its obligations under the Agreement if and to the extent that such failure or delay is the result of a Force Majeure Event.
21. ASSIGNMENT AND OTHER DEALINGS
Save with the other party's prior written consent, neither party shall assign, transfer, mortgage, charge, sub-licence, sub-contract, delegate, declare a trust or deal in any other manner or otherwise dispose of or encumber the Agreement or any of its rights or obligations under it.
22. DISPUTE RESOLUTION PROCEDURE
22.1 Save that nothing in this clause 22 will prevent a party from taking any actions in relation to the recovery of debts, in the first instance, disputes which may arise between the parties in connection with the Agreement shall, be dealt with and determined as follows:
22.1.1 each party shall nominate a representative who will be authorised to deal with the management, negotiation and settlement of any dispute arising under or in connection with the Agreement (“Nominated Representative”). Each party may change the identity of its Nominated Representative at any time during the Term of the Agreement;
22.1.2 each party shall refer any dispute that arises under or in connection with the Agreement to its Nominated Representative appointed in accordance with clause 22.1.1, who shall be responsible for the escalation of the dispute within that party’s organisation and shall notify the other party’s Nominated Representative in writing of the reason for the dispute. Any such notifications shall include a summary of the salient details of the relevant dispute (“Dispute Notice”);
22.1.3 the Nominated Representatives shall meet in person or online within fourteen (14) days of the date of a Dispute Notice from the relevant Nominated Representative in order to agree a resolution or action(s) required by each party in order to resolve the dispute;
22.1.4 if any dispute has not been settled and/or a course of action for its settlement has not been agreed within twenty-eight (28) days of the date of the Dispute Notice, each Nominated Representative shall procure that an alternative senior representative (“Alternative Senior Representative”) shall meet in person or online with an Alternative Senior Representative of the other party in order to seek a resolution of such dispute on one separate, further occasion. The parties shall procure that such meeting between each party’s Alternative Senior Representative takes place as soon as reasonably practicable, taking into account the timescale in which the matter in dispute should be resolved so as not to impede the performance of the Agreement and in any event within forty-two (42) days of the date of the Dispute Notice;
22.1.5 if a settlement does not result from the meeting held between the parties’ Alternative Senior Representatives and in any event within fifty-six (56) days of the Dispute Notice, the parties shall attempt to settle their dispute by mediation, in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure, by an independent mediator appointed by CEDR unless otherwise agreed between the parties. To initiate the mediation, a party will (a) serve notice in writing (“ADR Notice”) to the other party, requesting a mediation; and (b) send a copy of the ADR Notice to CEDR. The mediation will start no later than thirty (30) days after the date of the ADR Notice. The costs of mediation shall be shared equally between the parties;
22.1.6 neither party will commence any court proceedings under clause 31 in relation to the whole or part of the dispute until ninety (90) days after service of the ADR Notice, provided that the right to issue proceedings is not prejudiced by a delay; and
22.1.7 if the dispute is not resolved within ninety (90) days after service of the ADR Notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of ninety (90) days, or the mediation terminates before the expiration of the said period of ninety (90) days, the dispute shall be finally resolved by the courts of England in accordance with clause 31.
22.2 All periods specified in clause 22.1 shall be extendable by written agreement of the parties.
22.3 Each party shall act in good faith in its attempts to resolve its dispute with the other party.
23. NOTICE
23.1 Any notice or other document required or permitted to be given under the Agreement shall be in writing.
23.2 Any notice or other document required or permitted to be given under the Agreement may be hand delivered, sent by post or other next working day delivery service, or e-mailed. Unless notice is sent by e-mail, it shall be addressed to a director or partner of the recipient party and sent to the address stated in the Omni Mortgage Club Application Form or to such other address that the recipient has notified to the other party in writing from time to time.
23.3 Written notice to Omni may be given by e-mail to: support@omni-mortgageclub.co.uk
23.4 Every notice, request, demand or other communication under the Agreement shall, in the case of a letter, be deemed to have been received when hand delivered or on the second Business Day after it has been posted; and in the case of an e-mail, on the day of transmission, unless an “out of office” reply is received, in which case, receipt shall be deemed to be on the second Business Day after the day of transmission.
23.5 This clause 23 does not apply to the service of any legal proceedings, or where applicable any other method of dispute resolution.
23.6 Nothing in this clause 23 shall prevent the use of e-mail for day-to-day communication between the parties, or for matters not requiring formal notice.
24. RIGHTS AND REMEDIES
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
25. VARIATION
No variation of the Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
26. WAIVER
26.1 A waiver of any right or remedy under the Agreement or by law, or any consent given under the Agreement is only effective if given in writing by the waiving or consenting party and shall not be deemed a waiver of any other breach or default. The waiver shall only apply in the circumstances for which it is given and shall not prevent the party giving it from subsequently relying on the relevant provision.
26.2 A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not (a) constitute a waiver of that or any other right or remedy, or (b) prevent or restrict any further exercise of that or any other right or remedy under the Agreement. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
27. SEVERANCE
27.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 27 shall not affect the legality, validity and enforceability of the rest of the Agreement.
27.2 If any provision or part-provision of the Agreement is deemed deleted under clause 27.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
28. NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or Liability and the exercise of any right or power).
29. THIRD PARTY RIGHTS
Except as expressly stated in the Agreement, the Agreement shall not create nor confer any rights that shall be enforceable by anyone other than the parties to the Agreement and, where applicable, their successors and permitted assigns pursuant to the Contracts (Rights of Third Parties) Act 1999.
30. ENTIRE AGREEMENT
30.1 The Agreement constitutes the entire agreement between the parties on the subject matter of the Agreement and supersedes and extinguishes all previous agreement, promises, assurances, warranties, representations, contracts, arrangements and understandings between them, whether written or oral, relating to its subject matter.
30.2 Each party acknowledges that in entering into the Agreement it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement.
31. GOVERNING LAW
The Agreement shall be governed by the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.