1. Introduction
1.1. This website (the "Site") is owned and operated by Mortgage Next Packaging. These Broker Terms and Conditions (the "Terms") set out the terms and conditions in consideration of which We agree to provide You (both as defined below) with access to certain electronic services through the Case Tracker and evaluate systems (and others), including, but not limited to, online Decisions In Principle ("e-DIPs"), Key Fact Illustrations ("KFIs") and online case tracking and upon which We entertain applications for our product range introduced by You. (collectively, "the Services").
1.2. The Services are provided by Mortgage Next Packaging, a trading style of Freedom Finance Groupwhich is a mortgage arranger registered in England and Wales and authorised to provide the Services by the Financial Services Authority (the "FSA"). The Services are not intended to be provided to and may not be used by any party in any jurisdiction where the provision or use thereof would be contrary to applicable law, rules or regulations ("Applicable Law"). As used herein, the term "You" and "Your" shall mean you, individually, and each other party on whose behalf you may use the Services at any time. All references to "Mortgage Next Packaging", "We", "Us" or "Our" shall refer to Mortgage Next Packaging, its holding companies, subsidiaries and any other companies associated or affiliated with Mortgage Next Packaging from time to time and all its authorised third parties.
1.3. The Site is a business and commercial site intended for use by financial intermediaries. As such, it is not intended to be used by members of the general public.
1.4. The production of a DIP or KFI using this website does not constitute a binding Mortgage Offer, or guarantee eligibility for a particular product or scheme. Nor does it bind Us or any lender in any way to make an advance on the terms given.
2. Website Terms of Use and Privacy Policy
Your use of the Site is subject to the Website Terms of Use set out here, which You are deemed to accept by using the Site. Your attention is also drawn to the Mortgage Next Packaging website Privacy Policy set out here which sets out how We will use the personal information provided by You or collected from Your use of the Mortgage Next Packaging Site.
3. Passwords
You are solely responsible for maintaining the confidentiality of any user identifications, passwords, authentication codes or other security devices or procedures (collectively, "Passwords") issued to You or to persons within Your organisation. You may not share Your Passwords with any third party without Our written approval. Upon request, You shall provide Us with a list of persons authorised to use Your Passwords, and You shall promptly advise Us of any changes in such authorised persons. You agree not to alter, delete, disable or otherwise circumvent any Password or permit or assist any other party to do so in a manner not authorised by Us. We reserve the right to suspend Your access to the Services and change (or require You to change) Your Passwords at any time. You are responsible for all transmissions, instructions, information, processes, click stream data or other communications ("Communications") attributable to Your Passwords, whether entered by Your authorised personnel or by any other person, and any agreement or consent communicated from such access shall be deemed to be a duly signed writing of Yours sufficient to bind You. You shall notify Us immediately upon learning or suspecting that any unauthorised party has obtained Your Password. You shall maintain adequate internal procedures and controls over Your use of the Services.
4. Changes to the Broker Terms and Conditions
4.1. You may be asked to execute supplementary agreements, in paper or electronic form, before You are permitted to access or use certain features or functionality of the Services (each, a "Supplemental Agreement"). In the case of Supplemental Agreements presented to You online, You authorise Us to rely upon "clicks" in designated locations that are attributable to Your Password as Your consent to the terms of such Supplemental Agreements. You have agreed to and/or may be asked to agree to account agreements and other documentation between You and Us governing the provision to You of products and services other than the Services (each, an "Account Agreement"). These Terms are in addition to any Account Agreement and is not intended to supersede or modify any such Account Agreement. Solely in connection with Your use of the Services, in the event of any conflict between the Terms, any Supplemental Agreement or any Account Agreement, the following order of preference shall be observed: the Supplemental Agreements, these Terms and the Account Agreements.
4.2. Upon notice to You, We may add, delete or otherwise modify any portion of these Terms (including the Supplemental Agreements) in whole or in part at any time, including without limitation to impose charges for use of the Services or an portion thereof. Your continued use of the Services 10 days after receipt of such notice shall constitute Your acceptance of such terms.
5. Use of the Services
5.1. We grant You, for the term of these Terms, a personal, limited, non-exclusive, revocable, non-transferable and non-sublicenseable license to use the Services subject to the terms hereof, and the following:
(a) You have no ownership rights in the Services, which are owned by Us or Our licensors, and are protected under copyright, trademark and other intellectual property laws and other Applicable Law. You receive no copyright or any other intellectual property right in or to the Services, except as provided above.
(b) You may use the Services only for Your internal business purposes.
(c) You agree that We may provide certain portions of the Services under license from third parties, and You agree to comply with any additional restrictions on Your usage that We may communicate to You from time to time, or that are otherwise the subject of an agreement between You and such licensors.
(d) We retain exclusive control over the Services, and reserve the right, at any time and in Our sole discretion, without prior notice to You, to (a) change, suspend or discontinue all or a portion of the Services; (b) impose limits on, restrict or terminate Your access to all or a portion of the Services; or (c) terminate Your license.
(e) You acknowledge and agree that unless expressly included in any other agreement between You and us, the requirements of the Electronic Commerce Directive (00/31/EC) as implemented are excluded to the fullest extent permissible by law.
(f) You agree that We may monitor Your use of the Services.
5.2. E-mail and instant messaging features may be provided to You as a convenience to enhance Your Communications with Us. Unless otherwise agreed to by Us, You shall not use these features to request, authorise or effect any transaction or for any other Communication that requires non-electronic written authorisation. We shall not be responsible for any loss or damage that results if any request for those purposes is not accepted or processed. You agree that You shall use these features in compliance with Applicable Law, and You shall not use them to transmit inappropriate information, including information that may be deemed obscene, defamatory, harassing or fraudulent.
5.3. Except as We otherwise agrees in writing, You are solely responsible for all costs and fees associated with Your use of the Services, including acquiring, installing, maintaining and supporting any hardware and/or software necessary to access and use the Services. You agree that the requirements for such operating environment may change without prior notice.
6. Representations and Warranties
6.1. You represent and warrant, each time You use the Services, that:
(a) You have the power and authority to enter into and perform Your obligations under these Terms are Your legal, valid, binding and enforceable obligation.
(b) You shall only use the Services in accordance with these Terms, any applicable Account Agreement, any applicable Supplemental Agreement and Applicable Law;
(c) If You are accessing the Services on behalf of another party, You assume all fiduciary, regulatory and other requirements and duties that may apply to Your relationship to such party.
(d) You are authorised by the FSA to provide mortgage advice to consumers or You are an appointed representative of someone so authorised, as defined in section 39 of the Financial Services and Markets Act 2000.
(e) In providing mortgage advice to consumers and making use of the Services You will abide by applicable law and regulation, including all existing and new rules and guidance laid down by the FSA (“FSA Rules”); in particular You will retain copies of all files in respect of each application You process and You have in place adequate Professional Indemnity Insurance and will maintain and renew the same in accordance with the FSA Rules.
(f) You acknowledge that, in accordance with applicable law and regulation, including the FSA Rules, You are responsible for the mortgage advice You provide to consumers and we reserve the right to reclaim any loss we may experience as a result of any breach by You of applicable law and regulation, including the FSA Rules.
(g) You are duly registered under, and will comply with, the Data Protection Act 1998 and You will maintain and renew Your Data Protection Act registration as and when required.
(h) You hold a Consumer Credit Licence and will comply with the Consumer Credit Act 1974 and will maintain and renew Your Consumer Credit Licence as required;
(i) You shall not introduce, nor permit any person to introduce into the Services, any code, malicious or hidden mechanisms that would impair the operation of the Services or of Our computers or other devices or software, or would permit other users access to the Services, nor shall You use the Services to gain unauthorised access to any computer system.
6.2. The Services are provided by Us "as is", and neither We nor any third party that contributes in any manner to the Services makes any representation or warranty whatsoever, including warranties (i) with respect to the accuracy, completeness or timeliness of the Services; or (ii) that the Services shall be uninterrupted, that there will be no delays, errors or loss of transmitted data or that no viruses will be transmitted or no damage to Your computer. Further, We and any third party that contributes in any manner to the services disclaim any express or implied warranties, including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to the Services. Any hyperlink to another website is not and does not imply an endorsement, investigation, verification or monitoring by Us of any information on that site.
7. Limitation of liability
7.1. To the fullest extent permitted by law, under no circumstances shall We or Our third party vendors, contractors or technology or content providers or their respective officers, directors, owners, agents and employees (the "Mortgage Next Packaging") have any liability to You or any other person for any costs, liabilities or damages of any kind ("costs"), arising out of, or in connection with, this agreement or the performance or breach of this agreement, or Your or any other person"s use of, or inability to use, the services. These limitations shall apply regardless of the form of action, whether based on statute or arising in contract, indemnity, warranty, strict liability or tort (including negligence), and regardless of whether any Mortgage Next Packaging Party knows or has reason to know of the possibility of such damages. notwithstanding any other provisions of this agreement and without limiting the foregoing, the maximum aggregate liability of the Mortgage Next Packaging Parties under this agreement and with respect to the services shall not exceed the amount earned (including any mark-up), if any, by Us from You in connection with the specific event giving rise to your loss or damages, unless caused directly by the Mortgage Next Packaging Parties" gross negligence or wilful misconduct. This limitation of liability is in addition to any other limitation provided in any applicable account agreement or supplemental agreement.
7.2. Any cause of action with respect to the Services must be commenced within one year after the claim or cause of action arises.
7.3. We are assuming that, for all remortgages, you have taken all aspects of the factfind and your clients’ needs into account and that this will leave the applicant in a better financial position. You will also have documented your decisions in the suitability letter.
8. Fees
Procuration Fees (“Procuration Fees”) for introducing successful applications may from time to time become payable by Us to You. A Submission Fee (“Submission Fee”) is a payment made to Mortgage Next Packaging in relation to a mortgage application and/or valuation report instruction. You agree:-
(a) to repay us at once any Procuration Fees which have been overpaid, whether by reason of miscalculation or error on our part, failure of any transaction the subject of an application whether by reason of withdrawal by us, cancellation by the applicant, return of funds or otherwise;
(b) that, without prejudice to any other remedies available to us, we may set-off any sums owed by You to Us against any Procuration Fees.
(c) that, once the Submission Fee payment has been received by Us and the valuation report has been instructed, the Submission Fee is non-refundable.
(d) that, if You pay a Submission Fee prior to an application form being received by Us, You acknowledge that the valuation report will be instructed without other details of an application being considered by Us.
(e) that if, exceptionally, we have agreed at your request to start to process any application, on the basis that You will arrange for any Submission Fee or other fees which should have been remitted with the application, to follow the application, to pay us such Submission Fee or other fees;
(f) any required Submission Fee will be paid to Us by cheque, debit/credit card, or via the Mortgage Next Packaging online payment system.
9. Indemnity
You agree to indemnify, defend and hold the Mortgage Next Packaging Parties harmless from and against any and all losses, liabilities, judgments, arbitration awards, settlements, expenses, damages and costs (including legal fees and disbursements) as incurred by any of the Mortgage Next Packaging Parties arising in any manner out of or relating to Your use of, or inability to use, the Services or any breach or alleged breach by You of these Terms. You shall cooperate with Us as fully as reasonably required in the defence of any third party claim subject to these indemnity provisions. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by You. You shall not in any event settle any matter without Our prior written consent. This indemnity is in addition to any other indemnity provided in any applicable Account Agreement or Supplemental Agreement.
10. Data Protection
10.1. All personal data supplied by You and relating to You, including transactional data, will be held by Us and used as follows:
(a) To provide and administer Your intermediary registration account for verifying regulatory authorisation in relation to mortgage and secured loan business.
(b) To check Your details with the Financial Services Authority and the Office of Fair Trading in relation to Your Consumer Credit Licence and the Data Protection Register.
(c) To inform You of other products and services provided by Us and to pass to other carefully selected companies who may wish to offer You products or services, but only to the extent that You have given Us Your permission.
10.2. Should You wish to contact Us in respect to any of the above, please write to Mortgage Next Packaging at Mortgage Next Packaging, 3rd Floor Quadrant House, 61-65 Croydon Road, Caterham, Surrey, CR3 6PB, marked for the attention of the Data Protection Manager.
10.3. You confirm that You have read the Applicant Data Processing Consent as set out here and You confirm that You will always gain the consent of applicants to the use of their personal data in the manner provided therein.
11. Waiver
Any forbearance or delay on the part of either party hereto in enforcing any provision of these Terms or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce same for such occurrence or any future occurrence.
12. Invalidity
If at any time any of these Terms, or part thereof, is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that Condition shall be enforced to the maximum extent permissible so as to affect the intent of that Condition. The illegality, invalidity or unenforceability of that Condition shall not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other Condition; or
(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other Condition.
13. Assignment You may not assign, charge, deal, sub-contract, delegate or transfer in any other manner any rights duties or obligations conferred on You under these Terms to any third party without Our express written consent. Any instrument purporting to make an assignment or other transfer in violation of this provision shall be null and void.
14. Termination You may terminate this agreement, with or without cause, upon at least one day's written notice in non-electronic form to Us. Conditions 5.1, 5.3, and 6-18 shall survive the termination of this agreement.
15. Entire Agreement These Terms, together with any and all Supplemental Agreements, applicable Account Agreements, the Site Terms of Use and the Site Privacy Policy constitute the entire agreement between You and Us with respect to the Services.
16. Notices Any notices or other communications required or permitted to be given or delivered under these Terms by Us to You shall be provided through the Services, by e-mail, by facsimile (with confirmation of receipt) or in writing to the address provided by You, which You are solely responsible for updating as necessary. Any notices or other communications under these Terms by You to Us shall be provided in writing to Mortgage Next Packaging, 3rd Floor Quadrant House, 61-65 Croydon Road, Caterham, Surrey, CR3 6PB, Attention: Compliance Department, or as otherwise specified in writing. Notices transmitted electronically (e-mail, facsimile or phone) shall be effective upon transmission, provided that such notice is properly addressed; all other notices shall be effective upon receipt.
17. Confidentiality Each party will treat the existence of these Terms as confidential, and You further agree that any information relating to the content or operation of the Services is confidential and proprietary to Us, and that You will refrain from disclosing such information to any third party.
18. Contracts (Rights of Third Parties) Act 1999 The parties to these Terms do not intend that any Condition should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to these Terms.
19. Law and Jurisdiction These Terms are to be governed by and construed in accordance with English Law. The courts of England are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement. Any proceedings shall be brought only in the Courts of England.