TERMS OF ENGAGEMENT
1.1 In these Terms, the following terms will have the following meanings:
(a) “Application Form” means the application form issued by Onion from time to time;
(b) “Commission” has the meaning set out in clause 5.1;
(c) “Contract” has the meaning set out in clause 2.1;
(d) “Disclosure Statement” means the disclosure statement of the relevant financial adviser employed by Onion or contracted to Onion;
(e) “Insurer” means an insurer under an Insurance Contract;
(f) “Insurance Broker” means any person appointed by Onion from time to time to provide insurance broker services;
(g) “Insurance Contracts” means a contract of insurance (other than an investment-linked contract of insurance);
(h) “Lender” means any lender of Mortgage Finance;
(i) “Mortgage Finance” means mortgage finance in the form of a consumer credit contract within the meaning of the Credit Contracts and Consumer Finance Act 2003;
(j) “Onion” means Porteous Fraser Dent Limited trading as Onion Home Loans and Insurance Solutions;
(k) “Provider” means a Lender, Insurance Broker or Insurer (as the context requires);
(l) “Services” means the provision of financial advice in connection with Mortgage Finance and Insurance Contracts;
(m) “Terms” means these general terms and conditions of service as may be amended from time to time; and
(n) “You” or “Your” means the client or customer whose details are set out in the Application Form.
1.2 General Interpretation: In the interpretation of these Terms, unless the context otherwise requires:
(a) References to a party or a person include that party or person’s successors or permitted assigns.
(b) References to a statute include references to regulations, orders or notices made under or pursuant to such statute and references to a statute or regulation include references to all amendments to that statute or regulation whether by subsequent statute or otherwise and a statute or regulation passed in substitution for the statute or regulation.
2.1 The Application Form together with these Terms will constitute the entire agreement between the parties relating to the delivery of the Services by Onion to You (“the Contract”). All other terms and conditions, whether expressed or implied, are excluded from the Contract.
2.2 No variation of or substitution for these Terms will be binding on Onion unless accepted by Onion in writing.
2.3 Onion may from time to time vary these Terms by notice in writing to You.
3.1 You appoint Onion to provide the Services and Onion accepts such appointment, on the terms and conditions set out in the Contract.
3.2 Onion will provide the Services with reasonable care and skill and in a competent and professional manner in accordance with applicable law.
3.3 You acknowledge and agree that the Services provided by Onion in connection with Insurance Contracts will be limited to a referral of You to the Insurance Broker and the supply to the Insurance Broker of the information set out in the Application Form and any other relevant information provided by You to Onion. Although the Insurance Broker may provide services under the Onion brand, you acknowledge and agree that You will have a direct relationship and contract with the Insurance Broker and the Insurer in connection with any Insurance Contract, and all rights and liabilities in connection with the Insurance Contract will be solely between You, the Insurance Broker and the Insurer. Without limiting the foregoing, the Insurance Broker will be responsible for its own disclosure requirements under applicable law and the placement and servicing of any Insurance Contract on Your behalf including the issuing of appropriate insurance documentation and invoicing.
3.4 You undertake you will keep any proposal from a Provider confidential and will not disclose to any other Provider.
3.5 You acknowledge that Onion is not an employee, agent or joint venture partner of any Provider, nor does Onion act on behalf of any Provider.
- Client Information
4.1 You will provide all information requested by Onion or a Provider, including in the Application Form. You warrant that all information provided to Onion or a Provider (including in the Application Form) is true, correct and complete.
4.2 You agree that any information provided by you to Onion or any Provider may be used by Onion or the Provider for the purposes set out in the Application Form. For the avoidance of any doubt, the purposes set out in the Application Form shall be deemed to extend to disclosure of information to any Insurance Broker or an Insurer where You require services in connection with any Insurance Contract, and references in the Application Form to Lenders shall be construed accordingly.
- Commissions and Fee
5.1 Subject to clause 5.2 and clause 5.3, Onion will not charge you for the Services. You acknowledge that Onion and the Insurance Broker will receive a commission payment from a Provider in connection with any Mortgage Finance or Insurance Contract entered into by You (“Commission”), and such Commission may comprise an up-front Commission, an ongoing commission (or a combination of both) or, in the case of any Insurance Contract, a share of the commission received by the Insurance Broker. Onion may also receive certain other monetary or non-monetary benefits from Providers.
5.2 Onion may charge a fee for work completed for You which does not attract a Commission. This fee will be agreed in advance with You before Onion undertakes any work and will be invoiced to you upon completion of the work or, in the case of ongoing work, at the end of each month.
5.3 You acknowledge and agree that certain Commissions may be clawed back by Lenders if a client re-finances or repays a loan or a similar event occurs within a minimum period specified by the Lender. In the event that Onion receives a claw back of any Commission paid, You agree that you will, following provision of an invoice by Onion, pay Onion for the clawed back amount specified in the invoice. Claw back is typically based on a graduated scale from 100% up to 6 months from completion of full loan drawdown to 0% after 18 months. This structure is an indication only and can vary from Lender to Lender.
5.4 You acknowledge that Onion may make payments to persons who refer clients or customers to Onion. Any such payments will be made at the sole and absolute discretion of Onion and are not detrimental to Onion’s clients.
5.5 Payment of any invoice from Onion (including payment of GST) will be due in cleared funds by no later than 14 days following the date of invoice.
5.6 If payment is not received by Onion on the due date, interest may be charged at the rate of 10% pa., such interest to be calculated on a daily basis from the date payment was due until the date on which payment of the overdue amount (including interest) is made in full and will accrue after as well as before any court order or judgment.
5.7 You will not be entitled to withhold payment of, or to make any deduction from, or set off any amount against, any monies payable to Onion.
5.8 Onion reserves the right to recover from You all expenses and legal costs incurred by Onion (including solicitor/client costs and debt collector’s costs) in relation to obtaining or seeking to obtain remedy of default in payment by You and the enforcement of the Contract.
6.1 Either party may cancel the Contract upon 30 days prior written notice to the other party.
6.2 Either party may cancel this Contract with immediate effect if:
(a) the other party is in material breach of any provision of the Contract and that breach is unable to be remedied;
(b) where a material breach has occurred that is capable of remedy but is not remedied by the other party within 10 days of notice;
(c) the other party is bankrupt, wound up, goes into liquidation or a receiver or statutory manager has been appointed in respect of the other party;
(d) the other party makes any assignment to, or enters into an arrangement or composition for the benefit of, its creditors (other than for the purposes of a solvent restructuring);
(e) the other party is unable to pay its debts (including contingent liabilities) as they fall due.
6.3 Onion may suspend the Services on written notice to you if you are in breach of any provision of the Contract.
6.4 Termination of the Contract will not affect any rights and liabilities which have arisen prior to termination (including the obligation of You to pay any amount under the Contract) and will not affect the continuance in force of any provision of the Contract which is expressly or by implication intended to survive termination including, without limitation, clauses 3.3, 4, 5, 6 and 7.
- Warranties and Liability
7.1 Except as set out in clause 3.2, to the maximum extent permitted by law, all warranties, descriptions, representations and terms as to fitness, suitability for any purpose or otherwise, whether of a like nature or not, and whether expressed or implied by law, trade custom or otherwise are expressly excluded.
7.2 The liability of Onion for any loss, damage or cost arising directly or indirectly from any breach of the Contract, any breach of statutory duty or for negligence or otherwise (“Claim”) will in no circumstances exceed $10,000.
7.3 Onion will not be liable to You or any third party for any consequential, indirect or special damage or loss of any kind howsoever arising, or for any loss of opportunity, loss of profit, loss of goodwill or reputation or loss of future business.
7.4 You agree to indemnify Onion from and against all claims, liabilities, damage or loss suffered by the Onion arising out of or in connection with any breach or failure by You to comply with any representations and warranties or other terms and obligations of the Contract.
8.1 If you have any problem, concern or complaint about any part of the Services, You will use the dispute resolution process set out in the Disclosure Statement.
8.2 Onion will not be liable for any failure or delay in supply or delivery of the Services caused or occasioned by a breach by You of the Contract (including a failure to supply any relevant information), strike, lockout, Act of God, failure of a sub-contractor or other third party, legislative, governmental or other prohibitions or restrictions, fire, flood, hostilities, failure, delay or inability to obtain any necessary authorisation, legislative, departmental or other prohibition or restrictions, injunction or threat of injunction or threat of other legal action by any person against Onion or its suppliers or other causes whatsoever (whether similar or not to the foregoing) beyond Onion’s reasonable control.
8.3 No waiver by Onion of any breach or failure to enforce any provision of the Contract will in any way affect, limit or waive Onion’s right to subsequently enforce and compel strict compliance with the Contract.
8.4 If any provision of the Contract is or becomes invalid or unenforceable, that provision will be deemed deleted from the Contract and such invalidity or unenforceability will not affect the other provisions of the Contract, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.
8.5 The Client acknowledges that it has not entered into this Contract on the basis of, or has relied on, any statement or representation (whether negligent or innocent) except those expressly contained in the Contract.
8.6 The rights and obligations contained in the Contract are entirely personal to You and accordingly You may not, without the prior written approval of Onion, assign or transfer such rights or obligations to any third person. Onion may assign or transfer any rights and obligations under the Contract without Your approval.
8.7 The Contract will be construed and take effect as a contract made in New Zealand and will be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.