Silver Compliance Package Agreement
RECITALS
(A) The Compliance guys are authorised by the Financial Conduct Authority (FCA) to undertake Regulated Activities under Firm Reference Number 941360.
(B) The Company has instructed The Compliance Guys to manage certain aspects of their compliance manual and duties under Financial Conduct Authority (FCA) regulation this may include monitoring of credit-related activities.
1. DEFINITIONS & INTERPRETATIONS
1.1 Any references to a statutory provision shall include any subordinate legislation made from time to time under that provision.
1.2 Any reference to a statutory provision or regulation or to the FCA rules shall include that provision, regulation or rule as from time to time modified or re-enacted.
1.3 References to Clauses and Schedules are to clauses and schedules of this Agreement. Any Schedules to this Agreement shall form part of this Agreement. Headings are for convenience only and shall be ignored in interpreting this Agreement.
2. APPOINTMENT
2.1 These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Any quotation given by The Compliance Guys shall not constitute an offer and is only valid for a period of twenty (20) Business Days from its date of issue.
2.3 With effect from the Commencement Date The Compliance Guys hereby will provide the services listed in Section 1 of this agreement.
3. FEES AND CHARGES
3.1 The fees and charges payable by the Company to The Compliance Guys in relation to the Compliance Package as The Compliance Guys’ representative pursuant to the Terms of this Agreement, including the basis of their calculation and how frequently they are to be paid, are set out within Schedule 1 and or the monthly invoice which should be read as a schedule to this Agreement.
3.2 The Compliance Guys shall invoice the Company monthly.
3.3 The Company shall pay each invoice submitted by The Compliance Guys:
3.3.1. within thirty (30) days of the date of the invoice and in accordance with Schedule 1 of this agreement; and
3.3.2. in full and in cleared funds to a bank account nominated in writing by TheCompliance Guys, and time for payment shall be of the essence of the Contract.
4. LIMITATION OF LIABILITY
4.1 References to liability in this clause 4 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
4.2 Nothing in this clause 4 shall limit the Companies payment obligations under the Agreement.
4.3 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
4.3.1 death or personal injury caused by negligence;
4.3.2 fraud or fraudulent misrepresentation; and
4.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
4.4 Subject to clause 4.3 (No limitation in respect of deliberate default), The Compliance Guys’ total liability to the Company:
4.4.1 for all loss or damage shall not exceed the total amount payable under this Agreement.
4.5 This clause 4 shall survive termination of the Agreement.
5. IDEMNITY
5.1 Notwithstanding any other provision of this Agreement, the Company hereby undertakes and agrees to indemnify The Compliance Guys (including all of its officers, employees and other representatives) and keep it (and them) indemnified at all times against all claims, costs, losses, liabilities, fines, expenses, demands and/or proceedings which The Compliance Guys (and/or any of its officers, employees or other representatives) may suffer or incur or which may be made or brought against it (or any such person) arising out of or as a result of:
5.1.1 Any act or omission or purported act or omission by the Company under this Agreement;
5.1.2 Any act or omission or purported act or omission by the Company outside the Terms of this Agreement and outside the authority given to the Company hereunder;
6. COMPLIANCE WITH LAWS AND REGULATIONS
6.1 The Compliance Guys and the Company shall comply at all times with:
6.1.1 The Industry Regulations and any applicable general law;
6.1.2 Best practice in relation to its business; and
6.1.3 The Companies Compliance Manual;
6.2 Both parties shall procure that any Approved Persons employed by the Company or The Compliance Guys comply at all times with the FCA “Statement of Principles for Approved Persons” and the FCA Code of Practice for Approved Persons.
6.3 The Compliance Guys shall give the Company as much advance notice as possible of any prospective or actual changes in the Regulations and of any prospective or actual change in any condition or limitation on its authorisation by the FCA by the date of implementation of that change or as soon as is reasonably practicable thereafter.
6.4 In the event of any inconsistency between the Documents Provided and the Terms of this Agreement, the Terms of this Agreement shall prevail.
7. INTELLECTUAL PROPERTY
7.1 The Company acknowledges that the Intellectual Property (including the goodwill connected therewith and with The Compliance Guy’s name and business) belong solely to and shall at all times remain vested solely in The Compliance Guys.
7.2 The Company acknowledges and agrees that:
7.2.1 it is only permitted to use the Intellectual Property for the purposes of and during the term of this Agreement and only as authorised by The Compliance Guys here under;
7.2.2 Other than to the extent detailed in clause 7.2.1 above, it has and shall have no right to use or to allow others to use the Intellectual Property or any part of it and it shall not seek to register any Intellectual Property on behalf of The Compliance Guys without The Compliance Guys’ express consent;
7.2.3 It shall not use any trademark or trade names or similar devices which resemble The ComplianceGuys’trademarksortradenamesorsimilardevicesandwhichwouldtherefore be likely to confuse or mislead the public or any section of the public;
7.2.4 It shall not remove, alter or otherwise tamper with any trademarks, trade names, logos or other means of identification on any of the Products which come into its possession or control, and shall not place any trademark or trade name of its own upon any of the Products or on any other materials used in connection therewith;
7.2.5 It shall not do or omit to do or authorise any third party to do or omit to do anything which would invalidate or be inconsistent with the Intellectual Property and/or The Compliance Guys’ ownership and control of the same;
7.2.6 Where requested to do so by The Compliance Guys it shall make an appropriate statement in any advertising material and promotional literature produced by or for it in connection with any of the Products as to the ownership of any Intellectual Property used or referred to therein.
8. DURATION AND TERMINATION
8.1 This Agreement shall come into effect on the Commencement Date and shall (subject to any rights of earlier termination contained herein) continue in force for the minimum initial term of twelve (12) months (the “Initial Term”) and (subject as aforesaid) shall automatically continue thereafter until terminated as hereinafter provided.
8.2 The Compliance Guys and the Company may terminate this Agreement on the expiry of the Initial Term or at any time thereafter by giving not less than one (1) calendar month prior written notice provided that (notwithstanding such termination) those provisions of this Agreement which are intended to apply after the termination of this Agreement shall continue in full force and effect in accordance with their terms (and, for the avoidance of doubt, these shall include any obligations or liabilities on the Company in relation to the investigation and resolution of any breaches of this Agreement and/or any Complaints which are either unresolved as at the date of termination or which are made or received following termination).
8.3 The Compliance Guys may give notice in writing to the Company terminating this Agreement with immediate effect (and at any time) if:
8.3.1 The Company shall at anytime fail to pay any amount due and payable to The Compliance Guys on demand;
8.3.2 Any of the proprietors, directors or key staff (as appropriate) die or are incapacitated for any reason;
8.3.3 The Compliance Guys is required to do so by the FCA.
8.3.4 The Compliance Guys is no longer able to comply properly with any limitations or requirements on its own FCA permission or loses its permission to carry out Regulated Activities by the FCA
8.3.5 An order is made or a resolution is passed for the winding-up of the Company or an order is made for the appointment of an administrator to manage the affairs, business and property of the Company, or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the Company or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the Company’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint
a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the Company takes or suffers any similar or analogous action in consequence of debt or other liability;
8.3.6 The Company ceases, or threatens to cease, to carry on business;
8.3.7 The Company assigns or purports to assign its rights or obligations under this Agreement.
9. EFFECTS OF TERMINATION
9.1 Termination of this Agreement however caused shall be without prejudice to any rights or liabilities accrued at the date of termination.
9.2 Termination shall not affect the operation of those clauses of this Agreement which are, by their nature, intended to survive and continue in force notwithstanding the termination of this Agreement.
9.3 Subject as herein provided and to any rights or obligations accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.
9.4 In the event that The Compliance Guys terminates this Agreement prior to the expiry of the Initial Term pursuant to any one of the sub-clauses set out in clause 9.3 (other than in circumstances where The Compliance Guys no longer has the required authorisation from the FCA) then the Company shall forthwith pay to The Compliance Guys any unpaid balance of their monthly Fees set out in Schedule 2 to this Agreement for the remainder of the Initial Term (or, where the Initial Term has expired, for the one (1) months written notice period.
9.5 In the event of termination of this Agreement by either The Compliance Guys or the Company, no refund of any fees paid by the Company to The Compliance Guys shall be made.
10. CONFIDENTIALITY
10.1 Information of a confidential nature (including trade secrets and information of commercial value) known to and concerning The Compliance Guys and the Products, and which may be communicated to the Company by The Compliance Guys from time to time
10.2 The Company agrees that it shall at all times (both during the term of this Agreement and after its termination) keep confidential, and shall not use (other than strictly for the purposes of this Agreement) and shall not without the prior written consent of The Compliance Guys disclose to any third party any confidential information, unless the information:
10.2.1 Was public knowledge or already known to the Company at the time of disclosure to it; or
10.2.2 subsequently becomes public knowledge other than by breach of this Agreement by the Company; or
10.2.3 Subsequently comes lawfully into the possession of the Company from a third party without any obligation of confidentiality.
10.3 To the extent necessary to implement the provisions of this Agreement (but not further or otherwise), the Company may disclose the confidential information to any Customers or prospective Customers, to any relevant governmental or regulatory body or authority (including the FCA), and to any employees of the Company or of any of the above provided that before any such disclosure the Company shall make those persons aware of its obligations of confidentiality under this Agreement and shall obtain a binding undertaking as to confidentiality from all such persons (other than any governmental or regulatory body or authority).
10.4 All documents and other records (in whatever form) containing confidential information supplied to or acquired by the Company from The Compliance Guys shall be returned promptly to The Compliance Guys upon termination of this Agreement (and no copies shall be kept by the Company).
11. DATA PROTECTION
11.1 Both The Compliance Guys Ltd and the Company warrants that it shall duly observe all its obligations under General Data Protection Regulations which arise in connection with this Agreement.
11.2 All information will be held for six (6) years after termination of the agreement, for the purpose of complaints administration and meeting its obligations as an FCA regulated firm as required under the Financial Services and Markets Act as amended from time to time.
12. STANDARDS
12.1 Both parties agree to observe high standards of market conduct and for this purpose, The Compliance Guys reserves the right to make and issue such instructions or regulations as it deems appropriate in order to enforce any Industry Regulation in force from time to time, or relating to any investigation carried out by the FCA or the exercise of any intervention power by the FCA, or to otherwise protect and/or develop The Compliance Guys’ business and/or reputation, and the Company hereby agrees to comply with any such instruction or regulation.
13. FORCE MAJEURE
13.1 The obligations of each party under this Agreement shall be suspended during the period and to the extent that that party is prevented or hindered from complying with them by any cause beyond its reasonable control including (insofar as beyond such control but without prejudice to the generality of the foregoing expression) strikes, lock-outs, labour disputes, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials, goods or raw materials in connection with the performance of this Agreement.
13.2 In the event of either party being so hindered or prevented, the party concerned shall give notice of suspension as soon as reasonably possible to the other party stating the date and extent of the suspension and its cause and the omission to give such notice shall forfeit the rights of that party to claim suspension. Any party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall notify the other party. In the event that the cause continues for more than six (6) months either party may terminate this Agreement by giving the other party thirty (30) days’ written notice.
14. ENTIRE AGREEMENT
14.1 This Agreement (and the documents and materials referred to herein) constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, negotiations and discussions between the parties relating to it.
14.2 Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
15. AMENDMENTS
15.1 Save as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless in writing and signed by each of the parties to it (or by a duly authorised representative of each of the parties).
16. FREEDOM TO CONTRACT
16.1 The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver, and to exercise their rights and perform their obligations under this Agreement.
17. WAIVER
17.1 The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
18. SEVERABILITY
18.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deleted under this clause 18.1 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.
19. RIGHTS OF THIRD PARTIES
19.1 Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
20. INSURANCE
20.1 Where The Compliance Guys requires the Company to obtain PII, such PII shall be to the level required by The Compliance Guys and/or the FCA from time to time and details of the cover as amended from time to time will be made available by The Compliance Guys to the Company (or vice versa as the case may be) within twenty-eight (28) Business Days of the commencement of such insurance.
21. NOTICES
21.1 Any notice under this Agreement must be in writing and may be given by delivery, post, or email addressed to the other party at the address stated on this Agreement. Notices sent by first class mail shall be treated as having been received 48 hours after posting, notices sent by second class post shall be treated as having been received 72 hours after posting and notices sent by email at the time of transmission.
21.2 This clause 21.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
22. MEDIATION
22.1 The Parties shall use their reasonable endeavours to negotiate in good faith and settle amicably any dispute arising out of or relating to this Agreement in accordance with the following procedure:
22.1.1 The contract manager of each party (or an individual of similar seniority within the relevant party) will meet within five (5) Business Days (or such other period as is agreed) of receipt of a written notice to meet from the other party to negotiate in good faith to settle the dispute;
22.1.2 If, within five (5) Business Days of the first meeting the relevant individuals cannot reach agreement the matter will be referred in writing to the managing directors of each party (or to nominated alternative individuals of similar seniority within the relevant party) who will meet within five working days (or such other period as is agreed).
22.2 The parties shall each ensure that their representatives shall use all reasonable endeavours to reach a reasonable and amicable resolution to the dispute.
22.3 If any such dispute cannot be settled amicably through ordinary negotiations by appropriate representatives of the parties pursuant to clause 22.1 then either party may take whatever action is available to it at law and apply to the Courts of England and Wales for resolution of the dispute or the parties may agree to refer the dispute to the Centre for Dispute Resolution for resolution using its mediation procedure.
22.4 The parties reserve all their respective rights in the event that no agreed resolution shall be reached and neither party shall be deemed to be precluded from taking steps as may be considered necessary to protect such party’s position while negotiations, mediation or other procedure is pending or continuing.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be construed in accordance with and governed by English law and the parties hereby submit to the non-exclusive jurisdiction of the English and Welsh Courts in relation to any dispute arising in connection with this Agreement.
