Retail Client Intermediary Contract - with a FCA Member Firm

Transcription

1 Retail Client Intermediary Contract - with a FCA Member Firm This document is a contract executed as a deed between ourselves (The ECU Group plc, ECU ) and [name of Member Firm or the Intermediary ]. It sets out your rights and our obligations to you, and also our rights and your obligations to us. If you are an existing introducer of retail client business to ECU, this deed (the Agreement ) replaces all previous agreements between us. There are a number of defined words in the document. Throughout this document, we, us and our refer to ECU. You and your refer to yourselves, the Intermediary. Other words are defined in the course of the document. Your Relationship with ECU Authorisation You confirm that you are authorised by the Financial Conduct Authority ( FCA ) to deal with all categories of clients under the FCA rules including the authorisation to conduct investment business with retail clients. We are entitled to assume that your authorisation under the Financial Services and Markets Act 2000, as amended ( FSMA ) remains in effect until you notify us otherwise. You undertake to inform us promptly if you are not appropriately authorised, or if your authorised status changes or is adversely modified by the FCA. We will not accept introductions from persons who are not appropriately authorised. Prior to the finalisation of this Agreement, ECU will require the completion of a due diligence questionnaire (copy attached). Acting as Agent You have agreed to provide your services to ECU by arranging for certain of your clients to become ECU clients in respect solely of specific ECU products and services. As such you are providing services to us and are not our agent. Therefore, you will not act, or hold yourself out as acting, as an agent of ECU. 73 Brook Street, London W1K 4HX Tel: Fax: enquiries@ecugroup.com Registered in England No Registered Office: 53 Davies Street, London W1K 5JH Authorised and Regulated by the Financial Conduct Authority

2 Introducing Clients to ECU ECU s Relationship with the Client It is important that we clarify the nature of the relationship that exists between you, the clients that you introduce to us, and ECU. ECU is a firm authorised and regulated by the FCA (No ) having permission to deal with all categories of client under the FCA Rules. This said, our regulatory disclaimers clearly state that ECU provides advice only in respect of its own products and services but does not provide general (i.e. whole of market) advice to retail clients. Accordingly any prospective ECU retail client is recommended to obtain independent advice from you, or another appropriately qualified independent financial adviser. ECU s Client Agreement requires prospective clients wishing to open a managed currency account to warrant that they have taken independent investment advice, or declined to do so. Under current legislation, ECU s currency management service in respect of physical multi-currency loan facilities is not a regulated activity as defined by FSMA. ECU nonetheless has a policy that, as a FCA regulated firm and as a matter of good business practice, it will follow the same standards in its client take-on procedures for non-regulated activities as those that it follows in respect of its managed currency account programmes, which are regulated activities. Assuming that you are the prospective client s investment adviser, it will be your responsibility to assess and record the client s investment experience and suitability for an ECU product or service. ECU will give you for this purpose all information, disclosures, explanations and documents relating to ECU, its products and its services that we are required to provide under the rules of the FCA (including in respect of introduced non-regulated business). As part of our own responsibilities for suitability we will, upon receipt of a client introduction from you, review the investment experience recorded within your firm s Personal Financial Questionnaire (PFQ) and if we feel the suitability information and evidence you have provided is insufficient and we require further detail, we will so notify you and you will notify the prospective client accordingly. Please note that, and notwithstanding that you have conducted your own client due diligence and suitability assessments, ECU will require a prospective client introduced to it by you to complete an ECU PFQ which will detail, inter alia, the client s investment experience, appetite for risk and capacity for loss. ECU will also conduct anti-money laundering checks. Based on these inputs ECU will issue its own Suitability Report which will require to be countersigned by the prospective client. The client will also need to complete an ECU Client Agreement. If the Suitability Report finds the prospective client to be suitable for the ECU product, service or managed account being offered, ECU s services under the Client Agreement can then commence. Please note that ECU is not authorised to hold client monies or to arrange safeguarding or administration of assets, and therefore, in cases where a prospective client wishes to have a managed ECU currency account, such account will need to be opened (by the client or the Intermediary) with an account provider of the client s choice, with ECU being separately authorised to conduct the discretionary investment management of that account under a limited power of attorney. Page 2 of 9

3 The responsibility for advice given on the client s other assets is retained by you (or the client s financial adviser). As a consequence of this, we will communicate directly with the client only in respect of the investments that we manage. Because we have a direct relationship with the client, and because you are not acting as our agent, it will be necessary for the client to give us authority in writing to discuss his/her accounts and investments with you, accept instructions from you, or to provide you with a copy of our correspondence. We reserve the right to cease accepting introductions from you, at our discretion. Anti-Money Laundering Before our relationship with the client can commence, we carry out checks in accordance with prevailing UK anti-money laundering legislation and guidelines. As the Intermediary, you agree to provide us with such customer due diligence verification as may be required by us under our antimoney laundering policies and procedures. Alternatively, the client can provide us with this information directly. ECU s Reduced Fees ECU will charge a client that you introduce to us a reduced management fee of 80% of ECU s normal published management fee scale. Performance fees will be charged at 100% of ECU s normal published rates. VAT where applicable will charged. Ongoing Servicing You agree that you will notify us promptly in the event of the client expressing dissatisfaction to you about our or your service. You and we agree that you and we shall provide all reasonable assistance to each other in respect of any complaints which are being, or are to be, handled by the other. Legal Matters Liability and Indemnity Both parties agree to indemnify and keep indemnified the other from loss (including for this purpose all costs and expenses reasonably incurred) resulting to either party and arising from: Any failure by one to comply with the provisions of FSMA, any regulations arising from FSMA or any rules of the FCA; or Page 3 of 9

4 Any breach by one party of any of the terms of this Agreement including, without limiting the foregoing, any failure to provide promptly and accurately the information or documentation required in relation thereto. This indemnity shall not extend to loss caused to us in respect of a deal or transaction if a client defaults, provided that we shall be entitled in such circumstances to refuse to accept instructions from you or the client introduced by you until such time as we have been fully compensated for such loss. Variation and Termination ECU may at its absolute discretion decline to enter into a Client Agreement with a prospective client. ECU reserves the right to vary the terms of this Agreement (either generally or specifically in respect to you) by notice in writing. Not less than 10 London business days prior notice shall be given to you of any such variation, unless by specific agreement with you. Either you or we may terminate this Agreement by giving not less than 3 months written notice at any time, to the other, unless there is a breach of the terms thereof in which case notice can be seven working days. This Agreement shall automatically terminate if and when you cease to be authorised by the FCA to arrange deals in investments, or are convicted of fraud or negligence, or you are the subject of a winding-up or bankruptcy petition. Service of Documents Any letter or other document shall be deemed to have been duly served upon you if it is sent by post to you, or left at the address that you last notified us of in writing, or sent by facsimile. Any letter or other document sent by first class post shall be deemed to have been served at 10:00 a.m. on the second Business Day after it was put into the post. In proving service of a notice or document it shall be sufficient to prove that delivery was made or that an envelope containing the notice or document was properly addressed and posted as a prepaid first class letter. Any document sent by facsimile shall be deemed to have been duly served upon you if it is properly successfully transmitted to the facsimile number given to us by you and at the expiration of 2 hours after the time of transmission, if sent before 15:00 p.m. on any London Business Day, and in any other case at 10:00 a.m. on the London Business Day following the date of transmission. Entire Agreement This Agreement constitutes the entire agreement between you and us with respect to the matters dealt with therein, and replace any previous agreement between you and us in relation to such matters. You accept that no representations may be relied upon other than those contained in the entire Agreement and that, except in respect of fraudulent statements, neither you nor us have any rights or liabilities in respect of any statements made before you complete the Agreement. Page 4 of 9

5 Severability If any provision of this Agreement is invalid, illegal or unenforceable in any respect, that invalidity shall not affect the validity and enforceability of any other provision of this Agreement. The parties shall, in good faith, seek to achieve the objectives of the unenforceable or invalid or illegal provision insofar as it is legal and proper for them to do so. Force Majeure ECU shall not be liable for any delays in meeting our obligations under the Agreement caused by Force Majeure, including fire, flood or other natural disaster, power failure, reduction of power supplied, major medical epidemic, strike, lockout, industrial dispute or action. Third Party Rights This Agreement does not create any rights under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person who is not a party to it. Arbitration All disputes which shall at any time arise between the parties whether during the term of this Agreement or afterwards concerning this Agreement or its construction or effect or the rights, duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this Agreement shall be referred at the request of either party to a single arbitrator agreed by the parties. In default of agreement by the parties, such single arbitrator will be nominated by the President for the time being of the Chartered Institute of Arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force. The costs of either party in enforcing its rights under this Agreement including, without limitation, reasonable professional costs, will be the responsibility of the party against which the arbitration award is made in respect of such rights unless the arbitrator otherwise decides. Page 5 of 9

6 Governing Law This Agreement is governed by and shall be construed in accordance with English law and both parties agree that the English Courts shall have exclusive jurisdiction. ECU is registered in England, company number and has its registered office at 53 Davies Street, London W1K 5JH. ECU is authorised and regulated by the Financial Conduct Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS ( ) Executed as a deed by: The ECU Group plc (Authorised Signatory) (Authorised Signatory) Name: Name: Executed as a deed by: [Intermediary] (Authorised Signatory) (Authorised Signatory) Name: Name: Witness (Signature, name and address) Witness (Signature, name and address) Date: Date: Page 6 of 9

7 Due Diligence Questionnaire (in connection with a Retail Client Intermediary Contract between The ECU Group plc and a FCAauthorised Member Firm) YOUR DETAILS Individual s name: Company name: Address: Telephone number: Company contact name: Company website: SECTION A: COMPANY INFORMATION FCA Registration Number: Please describe your corporate structure including parent companies and subsidiaries. What corporate identity or identities will ECU be in contract with? Please give a high level, top down description of your management structure. Include organisational charts as appropriate What is the country(s) of incorporation and operation? What is your corporate status? Please provide a copy of the audited accounts for the past three years. Has the Company or its directors/partners ever been subject to an investigation under the Companies Act or equivalent? SECTION B: INFORMATION RELATING TO REGULATORY OVERSIGHT, AND FITNESS & PROPRIETY What are your authorised and regulated activities? Has your company or any of your directors/partners or employees ever been censured, disciplined, suspended or expelled by the FCA, another regulatory body, a clearing house, an exchange, a professional body or a government body or agency? If yes, please provide details for what. When did a regulatory body last audit/review your regulated activities? Page 7 of 9

8 Are any regulatory audits/visits pending? SECTION C: SYSTEMS AND CONTROLS What procedures does the Company have in place regarding client identification and money laundering? What arrangements are in place to meet the requirements of The Bribery Act 2010? Please include details of staff training. Do you have a clearly defined risk and compliance policy and procedures that is followed by the workforce? How is regulatory training delivered to the workforce? What internal controls are in place to monitor business activities and processes? Do you have external compliance consultants? How often do they audit you? SECTION D: STAFF How do you maintain the regulatory standard of employees? How do you ensure changes in regulatory requirements are delivered to them? How many hours training do you allocate to staff in a year? Do you define competency requirements? And if so how is each role assessed? SECTION E: COMPLAINTS How do you identify and report regulatory breaches and customer complaints? Who deals with complaints and how do you ensure they are of suitable independence and seniority? SECTION F: CLIENT CONFIDENTIALITY AND SYSTEMS SECURITY How do you comply with the Data Protection Act? How do you ensure personnel do not use data for inappropriate purposes? Have you experienced any breach of data integrity or IT security systems for the previous 6 months, 1 year, 3 years? If yes, can you provide details? What measures are in place to prevent unauthorised access to your systems? Page 8 of 9

9 Comments/further information Please enclose the following: Company letterhead Copy of the Company s Complaints Procedure Copy of the Company s Data Security Policy Copy of the Company s Professional Indemnity Policy Copy of the Company's Anti-Bribery Policy Referral Agreement Signature Date Page 9 of 9