Terms of
Business
Agreement
For
Intermediaries
Butcher Robinson & Staples
International Limited
SE1
9RY
Registered in
Authorised and Regulated by the
Financial Services Authority
Firms Reference Number 310478
Terms of Business Agreement for
Intermediaries
Contents
1.
Introduction
2.
Meeting your Insurance Needs
3.
Your Responsibilities
4.
Binding Authorities and Other Facilities
5.
Market Security
6.
Insurance Documentation
7.
Claims Handling
8.
Electronic Communications
9.
Client Money
10.
Our Remuneration
11.
Other Revenue
12.
Conflicts of Interest
13.
Outsourcing
14.
Ownership and Share Interests
15.
Complaints
16.
Compensation
17.
Confidentiality
18.
Termination
19.
Scope
20.
Contracts ( Rights of Third Parties ) Act 1999
21.
Data Protection
22.
Liability and Indemnity
23.
Alternative Dispute Resolution
24.
Governing Law
25.
Signature Page
Terms of Business Agreement for Intermediaries
|
Please
read this document carefully. It sets
out the terms on which we agree to act for our clients and contains details
of our regulatory and statutory responsibilities. Please contact us immediately if
you have any questions. |
1 Introduction
Butcher Robinson and Staples
International Limited (hereinafter known as ‘BRASIL’) is authorised and
regulated by the Financial Services Authority (“FSA”) under Part IV the
Financial Services and Markets Act 2000, and is an accredited Lloyd’s
broker. We operate under the rules and
principles established by the FSA for conducting general insurance business.
Our authorisation status and the
permissions granted to us by the FSA can be checked on the FSA’s register by
visiting the website http://www.fsa.gov.uk/register
or by contacting the FSA by telephone on + 44 (0) 845 606 1234.
Our Firm Reference Number
(“FRN”) is 310478.
BRASIL is an independent general
insurance intermediary that offers advisory and broking services to meet a wide
range of insurance and reinsurance requirements. We advise on all types of non-investment
insurance products and are not tied to any insurer. All references to Insurance in this agreement where
applicable also refer to Reinsurance business.
This document sets out the terms of
BRASIL’s relationship with you for our provision to you of insurance services
in relation to your role as an intermediary handling general insurance
business. It applies to new and renewal
contracts incepting on or after 1st December, 2005.
2 Meeting your
Insurance Needs
BRASIL will endeavour to meet your
client’s insurance requirements, including the nature and extent of cover as
advised and cost where stated. We will discuss
the requirements with you, as necessary, and upon confirmation of your
instructions we will endeavour to place the insurance with suitable insurers.
During the course of the placement
of the insurance BRASIL will keep you informed of the progress of our
negotiations. We will use our knowledge
and expertise to implement the insurance programme(s) sought, subject to
available insurance capacity, and will make all reasonable efforts to do so
before the intended date(s) of inception, renewal or extension of cover,
whichever is appropriate.
Whilst in dealing with other
intermediaries there are no specific obligations imposed on us by the FSA’s
Insurance Conduct of Business rules (“ICOB”) we will endeavour to provide the
following information:
(a)
Once you have identified your client’s insurance needs and
we have placed the business according to your instructions, we shall provide
you with documentary evidence of insurance cover and will endeavour to answer
any questions you may have on the proposed cover, its benefits, restrictions,
exclusions and conditions.
(b)
We shall explain whether any quotation we provide is based
on a broad analysis of the available products in the market, or information
from a limited number of insurers, or from a single insurer, on request.
(c)
If our quotation is not based on a broad analysis of the
market, a copy of the list of insurers BRASIL selected from in relation to the
contract will be made available upon request.
Occasionally,
we may use the service of another intermediary to assist in a placement, but in
such cases we will advise you in advance.
3 Your Responsibilities
3.1 Proposal Forms
Your client may be required to
complete a proposal form or similar document in connection with the insurance
cover sought.
3.2
Disclosure of Information to Insurers
All information that is material to
your client’s coverage requirements, or which might influence insurers in
deciding whether or not to accept an insurance risk, the terms and conditions
that they offer and /or the cost of cover, must be disclosed by you. The onus is on you and/or your client to
decide what may be material and there is no duty on insurers to make enquires
of you and/or your client. Failure to
disclose material facts may allow insurers to avoid the policy and/or deny a
claim thereunder. This duty of
disclosure applies equally on taking out a new insurance policy and at renewal
and may also apply throughout the duration of the policy.
You and / or your client are
responsible for providing us with the information we request from you to enable
us to seek the cover required. We will
not be responsible for any consequences that may arise from any delay, failure
or omission by you and/or your client.
Please discuss with us if you and
/or your client have any doubts about what is material or have any concerns
that insurers have not been made aware of material information.
3.3
Evidence of Cover
You are responsible for reviewing
the evidence of insurance cover, including cover notes and policy documents, to
confirm that it accurately reflects the cover, conditions, limits and other
terms that you and/or your client require.
You should not rely upon any summaries or generic descriptions of the
cover that may have been provided.
Failure to comply with conditions or warranties may invalidate your
client’s coverage or allow insurers to avoid a claim payment. If there are any discrepancies, or you have
any queries, you should contact us immediately. We cannot however give advice
as to the legal interpretation of any specific aspect, in this regard you
should contact a competent lawyer.
3.4 Claims
Notification
You and/or your client are
responsible for notifying claims or circumstances that may potentially give
rise to a claim. To ensure full
protection under your client’s policy you and/or your client should familiarise
yourselves with the coverage conditions and procedures relating to claims and
to the notification of claims. Failure
to adhere to the notification requirements, including any time limits, as set
out in the policy, or other coverage documents, may entitle insurers to deny
your client’s claim.
In some cases claims may continue
under, or be made against, a policy long after its expiry date. It is important, therefore, for your client
to keep their policy documents in a secure place.
3.5 Change
in Circumstances
You and/or your client must advise BRASIL
as soon as reasonably practicable of any material changes in your/their
circumstances that may affect the services to be provided under their insurance
policy.
Failure to notify insurers of any
material changes that occur during the duration of the policy may invalidate
your client’s coverage or allow insurers to avoid claims payments.
3.6
Provision of Information
All data, recommendations,
proposals, reports and other information provided by BRASIL in connection with
your and/or your client’s insurance needs are for your sole use. You agree not to permit access by any third party
to this information without our express written permission. Working documents
and papers remain our property at all times. We reserve our right to take
action to protect proprietary information.
3.7 Payment
of Premium
You and/or your client will be
responsible for settling all monies due in accordance with the payment dates
specified in our debit note or other relevant payment documentation. As you are responsible for all dealings with
your client it is your responsibility to communicate in writing to your client
the full terms and conditions of insurance, the due date(s) for payment of
premiums and the ramifications of non-payment.
We require cleared funds on or before the settlement date advised to
you. Failure to settle premiums by the
due date may result in the cancellation of an insurance. Under no circumstances will we provide credit
or otherwise fund premiums on your/your client’s behalf.
3.8
Monitoring
You will be subject to
monitoring/review to ensure that you meet BRASIL suitability criteria and may
be required periodically to complete an Intermediary Questionnaire to provide
updated information.
3.9
Regulatory Authorisation
BRASIL will only accept business
from insurance intermediaries that have the legally required regulatory
authorisation. You may, therefore, be
required to confirm your firm’s authorised status and to provide evidence
thereof.
The requirements are as follows:
For UK
intermediaries, BRASIL must be provided with evidence that your firm is permitted to
conduct insurance mediation activities by the FSA.
For
“non-UK” intermediaries BRASIL must be provided with evidence that state and/or federal
authorisation has been granted including:
·
confirmation of regulatory authorisation
·
name of regulator
·
authorisation reference
·
details of licences held
“ Licences” means licences, permits
or other authorisations which you need under the jurisdiction in which you are
domiciled, trading, providing services, or in any other jurisdiction where you
need to hold such a licence in order to enter into contracts of insurance or
act as an insurance intermediary.
You must notify BRASIL immediately
of any withdrawal of licences, other restrictions, disciplinary sanctions, or
other changes to your regulatory status.
3.10 Legal
Issues
You must notify us as soon as
possible of any failure to comply with any relevant laws, regulations or requirements
in relation to your insurance business, or any failure, for whatever reason, to
maintain any necessary local or required licences, permits or other
authorisations. You must also notify us
of any matters that relate to our business relationship and of which we would
reasonably expect notice.
You will be responsible for
compliance with all applicable local insurance, fiscal and taxation law and
regulations.
In the event that we advise you that
premiums are unpaid and non-payment may result in the cancellation of the
policy, you are responsible for advising your client of any local laws
affecting his rights to insurance coverage (including any rights to be given
notice of cancellation by insurers) and for informing us accordingly.
3.11 Client Money
You are responsible for ensuring
that client money (premiums and claims) is properly accounted for and segregated
as required under the regulatory requirements applicable to you. You must also ensure that there are adequate
internal controls in place over client money.
You have a fiduciary duty to protect client money until an insurance
transaction is completed.
3.12 Errors
and Omissions Insurance
You must maintain Errors and
Omissions insurance that covers all of your firm’s activities in connection
with its handling of insurance intermediation business. You must advise us immediately in the event
that your insurance is cancelled, non-renewed or materially diminished.
3.13 Compliance
You must comply with all statutory,
legal and regulatory requirements in force from time to time in relation to
your firm’s activities and for the proper and/or lawful operation of this
Agreement.
You must comply also with all
applicable obligations imposed by or made under any relevant Data Protection or
similar legislation
3.14 Money
Laundering
You must adopt and maintain
procedures to guard against financial crime.
3.15
Conflicts of Interest
You must adopt and maintain
procedures to ensure that any conflicts of interest that may arise in relation
to the performance of contracts under this Agreement are identified, openly
resolved and clearly understood by all parties.
4. Binding
Authorities and Other Facilities
Certain insurers grant BRASIL
binding authorities or similar facilities to accept business on their
behalf. We may propose placing your
client’s insurance under a binding authority or similar facility where we
reasonably consider this best meets the insurance requirements. Where we intend to bind the insurance risk(s)
under a facility without reference to the insurer we shall inform you prior to
completion of the contract.
Such arrangements typically exist to
enable efficiency in the handling of risks of a particular type. As such they may enable us to place certain
business that, as an individual proposition, may not be considered economic, or
which for other reasons would be difficult to place with insurers on a
comparable basis. In accordance with
market practice we may receive a commission from insurers linked to the
profitability of the facility.
5. Market Security
The decision regarding the suitability
of any insurer rests with you and/or your client. If you have any concerns regarding any
insurers recommended for your insurance requirements you must advise us as soon
as possible and we will discuss them with you.
BRASIL periodically reviews the financial
strength of insurers with whom it deals.
However, we do not in any circumstances act as an insurer, nor will we
make representations, guarantee or otherwise warrant the solvency or ability to
meet future claims of any insurer with which we place business.
6. Insurance Documentation
BRASIL will send you documentation
confirming the basis of the cover secured on your behalf, including details of
the insurers, with a debit note or premium billing, where applicable showing
separately all the amounts payable. The
date(s) by which premium monies must be received by BRASIL, together with any
penalties for late payment to insurers, will be clearly stated. Failure to settle premiums by the date may
also lead to insurers rescinding or cancelling policies or avoiding settlement
of claims.
7. Claims Handling
Except where we advise otherwise, we
will provide claims handling services for the policies placed by us. Our claims handling services include, upon
receiving the required information from you, the notification of the claim or
circumstances to insurers, acting as an intermediary on your behalf in the
resolution of the claim and arranging the collection and/or settlement of the
claim in accordance with market practice and your policy terms and conditions.
Where we collect claims payments
these will be remitted to you as quickly as possible. However, we will not remit claims monies to
you before we have received them from insurers.
In the event that an insurer becomes insolvent or delays making settlement,
we do not accept liability for any unpaid amounts.
8. Electronic Communications
We may communicate with each other
by electronic mail, sometimes attaching further electronic data unless this is
precluded by an express agreement in writing between us. We both accept the risks inherent in these
means of communication (including the security risks of interception of or
unauthorised access to such communications, the risks of corruption of such
communications and the risks of viruses or other harmful devices).
Notwithstanding that BRASIL employs
anti-virus software, you will be responsible for virus checking all electronic
communications sent to you. You will
also be responsible for checking that messages received are complete. In the event of a dispute neither of us will
challenge the legal evidential standing of an electronic document and BRASIL’s
system shall be deemed to be the definitive record of electronic communications
and documentation.
9. Client Money
Client money (premiums and claims)
is segregated from BRASIL’s own money and held, in accordance with FSA
requirements, in a designated client bank account with an approved bank. We have a fiduciary duty to protect client
money until it is remitted to the client or insurer, whichever the case may be.
Under FSA rules your and/or your
client’s money may be held in a statutory or non-statutory trust. BRASIL’s practice is to hold Client money in
a non-statutory trust, for which we are required to obtain your informed consent. The aim of the non-statutory trust is to
protect clients’ money in the event of failure. In such circumstance the trust status should
secure that general creditors of the firm are not be able to make claims on
client money held for the purposes completing insurance transactions on behalf
of clients. A non-statutory trust also
has certain other advantages, including the ability to make advances of credit.
We will assume that you consent to your
money being held in a Non Statutory Trust account unless we hear from you to
the contrary.
Client money will be held as pooled
funds within a designated client bank account, unless otherwise agreed with
you/your client. BRASIL will retain any bank interest or foreign exchange gains
that may be earned on client money.
In certain circumstances, (usually
on ‘delegated authority’ or ‘binding authority’ business) money held by us as
agent for an insurer may also be held in a client bank account, but only if the
insurer has formally accepted that its interests are subordinated to those of
clients. In this instance ‘Risk Transfer’ (RT) has occurred and the Insurer has
formally agreed to it.
We may transfer client money to
another intermediary for the purpose of effecting a transaction on your behalf
through that company.
10. Our Remuneration
Our remuneration will be either
commission, which is a percentage of the insurance premium that is agreed by
the insurers with whom the insurance contract is placed, or a fee agreed with
you and/or your client. If appropriate,
and with your consent, our remuneration may be a mixture of these. If we charge an additional fee for documentation
or other ancillary services, such as claims handling, this will be subject to
specific prior agreement with you.
Commission and fees are earned on
placing the insurance risk at the outset of the policy period. In the event that, for any reason, the
insurance is cancelled or otherwise terminated prior to the expiry date, we
will be entitled to retain all commission and fees in respect of the full
policy period. Commission and/or fees
are payable to us in full upon receipt of the related premium.
As noted in clause four, where the
insurance has been bound under a binding authority or similar facility granted
to BRASIL, in accordance with market practice we may receive a commission from
insurers linked to the profitability of the facility.
Upon request BRASIL will disclose to
you all forms of remuneration it receives in connection with the placing of any
insurance risks on your behalf.
11. Other Revenue
BRASIL does not accept additional
commission payments from insurers based upon the aggregate premium volume
placed with them, the insurer’s renewal retention rate, or any other
similar contingency (such arrangements
being commonly known as “placement services agreements”, “market services
agreements “ and the like.
BRASIL may provide services to
insurers that are not directly related to the services provided to you and in
such cases we receive remuneration direct from the insurers in recognition of
those services. For example, we may act for one or more insurers with whom your
business is placed in the placement of their own reinsurances. These placements would be separate contracts
subject to their own terms and conditions, including those related to remuneration.
We may, where applicable, receive
overriding commission from Premium Finance providers.
BRASIL does not engage in practices
commonly referred to as “tying”. Tying
is when an intermediary threatens to stop sending insurance business to an
insurer unless in return it agrees to let the intermediary provide that
insurer’s reinsurance needs, or when an intermediary agrees to provide business
to an insurer in exchange for being given its reinsurances to place.
12. Conflicts of Interest
BRASIL has put in place procedures
to ensure that any conflicts of interest that may arise in relation to the
performance of its obligations under this Agreement are identified, openly
resolved and clearly understood by all parties.
13. Outsourcing
BRASIL reserves the right to
outsource certain administrative functions.
Where services are outsourced they will be governed by formal contracts
that will include service level agreements.
We will take what we consider to be reasonable steps to assure ourselves
that the service providers are providing adequate standards of performance.
In certain circumstances, we may be
dealing with outsourced service providers acting for insurers.
14. Ownership and Share Interest
BRASIL has no holding, direct or
indirect, in the voting rights or share capital of an insurance undertaking or
parent of an insurance undertaking.
No insurance undertaking or parent
of an insurance undertaking has a holding, direct or indirect, in the voting
rights or share capital of BRASIL.
15. Complaints
If you have a complaint you should
report it to BRASIL Compliance Officer (contact details are shown at the end of
this document). The Compliance Officer
will deal with your complaint quickly and efficiently and attempt to resolve it
as soon as possible.
In the event that you or your client
are dissatisfied with the response to your complaint you may be eligible to
refer it to the Financial Ombudsman Service.
We are required by the FSA to advise you on your eligibility and, if
applicable, a copy of the Financial Ombudsman Service’s explanatory leaflet will
be enclosed with BRASIL’s final response to your complaint.
16. Compensation
Should BRASIL be unable to meet its
liabilities because of its financial circumstances, your client may be entitled
to compensation from the Financial Services Compensation Scheme. There is no
charge for bringing a claim to the scheme.
Information on how to claim and
compensation limits can be found by visiting the Financial Services
Compensation Scheme’s website at http://www.fscs.org.uk
or by contacting them at 7th Floor, Lloyds Chambers, 1 Portsoken
Street, London E1 8BN, or by telephone + 44 (0) 20 7892 7300 or fax + 44 (0) 20 7892 7301.
17. Confidentiality
We will treat any non-public
information in our possession that relates to your business or your client’s
business as confidential. In the event
that you provide us with material, non-public information that could be
“price-sensitive” and makes us an writing and we will then take appropriate
steps to ensure it is handled sensitively.
It will be necessary, however, for
us to disclose information that you and/or your client may consider
confidential to insurers, or interested third parties such as loss adjusters, when
acting on your and/or your client’s behalf.
18. Termination
Our services may be terminated by
either party giving the other notice in writing or as otherwise agreed, such
notice to take effect immediately upon receipt by the other party.
In the event our services are
terminated by you we may be entitled to receive and retain any and all fees or
brokerage payable (whether or not the same has been received by us) in relation
to the full term of all policies placed by us.
Following termination, both parties
shall agree the procedures for administering the business transacted between
them at the time of termination. Each
party will remain liable to perform their respective obligations in accordance
with the terms of this Agreement until all business has expired or has
otherwise terminated.
19. Scope
This Agreement shall not vary, amend
or override the terms of any other contract (including any Lloyd’s Coverholder
Agreement) to which both you and BRASIL are parties.
In all other respects, this
Agreement constitutes the entire agreement and understanding of the parties and
supersedes any previous Terms of Business Agreement between the parties
relating to the subject matter.
Any variation to the
terms of this Agreement must be confirmed in writing.
20. Contracts (Rights of Third Parties) Act 1999
Unless otherwise agreed by us in
writing no term of this document is enforceable under the Contracts (Rights of
Third Parties) Act 1999.
21. Data Protection
We are registered under the UK Data
Protection Act 1998 and where applicable we undertake to comply with the Act in
all our dealings with your personal data.
22. Liability and Indemnity
Each party shall be responsible for,
and will indemnify and keep the other party indemnified against, any and all
loss suffered by the other party as a result of any failure by the indemnifying
party to comply with the provisions of any regulatory requirement and/or the
other party’s fraud, negligence or wilful default or that of its employees or
agents.
We do not accept legal
liability to any third parties, including your own clients.
23. Alternative
Dispute Resolution (ADR) Clause
It is agreed
between the parties hereto, that any and all disputes concerning terms,
conditions, meaning or effect of this agreement shall be submitted to
Alternative Dispute Resolution (“ADR”) before either party resorts to the
applicable legal processes or institutes court action in any jurisdiction or
invokes formal arbitration where applicable. ADR is understood to include
assisted conciliation, negotiation, settlement conferences, mediation,
pre-action protocols, expert determination, neutral evaluation, private judge
or jury intervention, informal and non contractual arbitration or such other
recognised alternative dispute resolution process as the parties shall agree is
appropriate.
Within 30 days
of one party informing the other that they wish to invoke this clause and that
they desire to be submitted to ADR, the parties shall agree which ADR
alternative to adopt, the nature and substance of the dispute and whether and
how to make the ADR decision binding. Should agreement not be reached on these
issues within this period the ADR alternative by default shall be a binding
determination by single expert mediation.
The parties
shall each provide the name of suitable third party neutral experts from which
list one will be chosen by agreement to conduct the dispute resolution process.
If within a further 30 days the parties cannot select from these a mutually
acceptable neutral then the decision shall be referred to the Centre for Effective
Dispute Resolution or, if agreement cannot be reached, the London Court of
International Arbitrators, for an Appointment.
Any such ADR
process shall be conducted in accordance with the rules, guidance and code of
conduct of the appointing body. Should mediation result in a resolution, the
parties agree to be bound by the outcome of the ADR process determined upon
under this clause and to enter into a contract giving effect to this agreement.
24 Governing Law
This document, which sets out the
terms of our relationship with you, will be governed by and construed in
accordance with English Law and any dispute arising under it shall be subject
to the exclusive jurisdiction of the English courts.
Terms of Business Agreement for Intermediaries
Signature Page
Terms of Business Agreement signed
For and on behalf of Butcher Robinson & Staples
International Limited:
Please sign the Agreement
where indicated below and return the signed page to us. If you do not sign the Agreement, do not
object to the terms and conditions and continue to trade with us, you will be
deemed to have accepted the Agreement.
I/We acknowledge receipt
of the BRASIL Terms of Business Agreement and agree to the terms and conditions
therein.
For and on
behalf of _____________________________________
(please enter your firm’s
name)
Signature:
__________________________ Date:
__________________
Name in
capitals: __________________________
Position:
__________________________________
Please sign and return one copy of the Signature Page
to:
The Compliance
Officer
Butcher Robinson &
Staples International Limited
Tel: +44 (0) 20 7407 0626
Fax: +44 (0) 20 7407 1076
Registered in