PLEASE READ THESE TERMS AND CONDITIONS WHICH WILL APPLY TO YOUR ACCESS AND USE OF THE MORTGAGE BRAIN PLATFORM AND SERVICES. IF YOU AGREE TO THESE TERMS AND CONDITIONS, PLEASE TICK THE PLATFORM TERMS AND CONDITIONS TICKBOX AT THE END OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU WILL NOT BE GRANTED ACCESS AND/OR USE OF THE MORTGAGE BRAIN PLATFORM AND SERVICES. PLEASE CONTACT intermediary@mortgagebrain.co.uk FOR FURTHER INFORMATION.

These Terms and Conditions are made between you “you” and “Mortgage Brain” (each a “party” and together the “parties”), whereby Mortgage Brain means Mortgage Brain Limited and Criteria Hub Ltd (incorporated and registered in England and Wales with Company No: 02085187 and 0974465 respectively and both of whose registered office is 6 The Courtyard, Buntsford Gate, Buntsford Drive, Bromsgrove, Worcestershire, B60 3DJ) (the “Terms and Conditions”).

If your access to or use of the Platform and Services is governed by or will be governed by a separate agreement made between your employer or some other body corporate (“Corporate Agreement”) and Mortgage Brain and there is a conflict between any of the terms of these Terms and Conditions and the Corporate Agreement, the conflict will be resolved according to the following order of priority:

1. the Corporate Agreement;

2. these Terms and Conditions.

If you change your status from having a direct relationship with Mortgage Brain to having one via a Corporate Agreement, it is your responsibility to close your account with Mortgage Brain and cancel any applicable direct debit, and ensure correct registration to the Platform and Services under the terms of the new Corporate Agreement.

Mortgage Brain reserves the right to amend these Terms and Conditions from time to time without notice. The amended Terms and Conditions will be effective from the date they are posted on the Platform. As these Terms and Conditions may be amended from time to time, you should check them frequently and regularly. Your continued use of a Service will constitute your acceptance of the amended Terms and Conditions.

Please be aware that neither the Platform nor the Services are, and shall be deemed to constitute, advice or a recommendation or endorsement by Mortgage Brain in any way. All data provided by Mortgage Brain as part of the Platform or Services is provided for information purposes only, should not be relied upon by you and is provided to assist you as a professional to evaluate and select the financial product that you feel is most appropriate to meet your or your client’s needs.

You should always check the suitability, adequacy and appropriateness of a financial product and it is your sole decision whether to obtain or refrain from using, or recommend any financial product to your client. If you are in any doubt as to the suitability, adequacy or appropriateness of any financial product referred to as part of the Platform or Service, you must rely on your own investigations and professional judgement.

1 TERM

These Terms and Conditions shall commence on the Start Date and shall continue thereafter unless terminated in accordance with clause ‎13 of these Terms and Conditions (the “Term”).

2 MORTGAGE BRAIN’S OBLIGATIONS

2.1 Subject to you complying with your obligations under these Terms and Conditions, Mortgage Brain will use reasonable endeavours to:

2.1.1 provide the Services with reasonable skill and care;

2.1.2 supply you with access to the Platform and Services in accordance with these Terms and Conditions;

2.1.3 promptly update the relevant aspects of the Platform and/or Services to accurately reflect the data in the sources which it uses;

2.1.4 perform its obligations within any timescales set out in these Terms and Conditions, but time for performance shall not be of the essence; and

2.1.5 provide access for you to the Mortgage Brain Help Desk during Business Hours.

2.2 Mortgage Brain does not warrant nor confirm that the provision of the Platform or Services will be uninterrupted, up-to-date, complete, wholly accurate or error-free or that the same will meet your individual requirements. You acknowledge that Mortgage Brain, in offering the Platform, refers and relies on information supplied by third parties and cannot guarantee the accuracy of such information. You further acknowledge that Mortgage Brain is unable to update the Platform and/or Services immediately upon becoming aware of any change in information supplied by any party, and there may be a delay in making any updates.

3 PLATFORM AND SERVICES

3.1 Mortgage Brain hereby grants to you, subject to the Terms and Conditions (including receipt of the Mortgage Brain Fee), for the Term, a non-exclusive, non-transferable, non-sublicensable and revocable licence to use the Platform, Services and Mortgage Brain Content only for the Purpose.

3.2 Without prejudice to the other provisions set out in the Terms and Conditions, and unless otherwise agreed in writing by Mortgage Brain with you during the Term, the licence granted in clause ‎3.1 is subject to the following conditions:

3.2.1 you shall not modify or remove, nor seek to modify or remove, any copyright or proprietary notices on the Platform.

3.2.2 the Platform and Services may only be used by you:

3.2.2.1 for the Purpose on behalf of clients; and

3.2.2.2 on a computer system running a compatible operating system and internet browser. Details of such compatible operating systems and internet browsers are available on request from Mortgage Brain.

3.2.3 you shall not permit any third party to use your access credentials to gain access to and use the Platform or Services.

3.2.4 you shall not link to, access or otherwise use the Platform or Services, or cause it to be used in conjunction with, any third-party software, database or other application without the prior written consent of Mortgage Brain. You are not allowed to use third party software which is designed to replicate, run or operate in conjunction with the Platform or Services without our written consent.

3.2.5 except to the extent permitted by law, you shall not decompile, reverse engineer, disassemble or otherwise derive the source code of any software used or owned by Mortgage Brain nor permit any third party to do so.

3.2.6 save as otherwise provided, you shall not, and shall not permit any third party to, copy, make error corrections to or otherwise modify or adapt the Platform or Services, nor create derivative works based upon the Platform or Services (or its contents) or permit any part of the Platform or Services (or its contents) to be combined with or become incorporated in any other computer programs.

3.2.7 you shall effect and maintain adequate security measures to safeguard the Platform and Services against access to or use by unauthorised persons and notify Mortgage Brain immediately on becoming aware of any unauthorised use of the Platform or Services by any person.

3.2.8 you shall not use the Platform or Services for any unlawful or fraudulent purpose or in a way which breaches any laws; and

3.2.9 you shall not use the Platform or Services to transmit any data, or send or upload any material, that contains viruses, Trojan horses, worms, time bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any platform or software, whether maliciously, technologically or otherwise.

3.3 Mortgage Brain makes regular changes and improvements to the Platform and Services from time to time and will communicate with you about planned maintenance as necessary.

3.4 Mortgage Brain will make support available during the Term either via the telephone helpline, messaging platform or by email during Business Hours only. Online training will be made available during the Term.

3.5 You shall indemnify Mortgage Brain, its Affiliates and each Related Party from and against all claims, liabilities, proceedings, costs, damages, losses, or expenses incurred by such parties as a result of or in any way connected with use or unauthorised use of the Platform, Services, or Mortgage Brain Content by you or a third party engaged or employed by you.

4 YOUR OBLIGATIONS

4.1 You shall:

4.1.1 use the Platform and Services for the Purpose only;

4.1.2 comply with these Terms and Conditions, including the Schedules, or any other requirements communicated by the Lenders directly to you;

4.1.3 register with the Lenders, as appropriate;

4.1.4 comply with the Lenders’ individual registration processes, as appropriate;

4.1.5 comply with any Lenders’ terms and conditions applicable from time to time which may relate, without limitation, to individual mortgage products, service levels or compensation, and which may be notified to you by the Lenders by post, email, by posting on the relevant Lender’s website or by any other digital channel;

4.1.6 ensure that any KFI complies with the FSMA before sending to a mortgage applicant;

4.1.7 comply with all applicable statutes, regulations, orders, rules, guidelines and guidance notes that affect the mortgage market including those made under and in accordance with the FSMA;

4.1.8 ensure your continuing authorisation by the FCA in relation to all relevant regulated activities as defined by the FSMA and, in the event of cancellation or variation of your authorisation either on your own volition or at the FCA’s own initiative, shall notify Mortgage Brain of such cancellation or variation within seven (7) days;

4.1.9 unless you are a Corporate User, pay Mortgage Brain the Mortgage Brain Fees;

4.1.10 ensure that any terms and conditions that need to be brought to the attention of the mortgage applicant (your client) or have to be confirmed by you, whether on your own behalf or on behalf of the mortgage applicant to the Lenders, are so complied with;

4.1.11 be responsible for your connectivity to the Internet or to Mortgage Brain’s Systems or as agreed in a Corporate Agreement, as applicable; and

4.1.12 be responsible for ensuring your IT system is compatible with the Platform and Services.

4.2 You shall ensure you are properly authorised by the FCA and that the use and appearance of any information and data, as appropriate, will comply with all applicable statutes, regulations, orders, rules, guidelines and guidance notes that affect the mortgage market, including those made under and in accordance with the FSMA. You will comply with all applicable laws, regulations, guidelines and codes of practice so affecting you including, but not limited to, those relating to a regulated firm’s reporting requirements. You, as an authorised firm, will be liable for any breach of or under the FSMA including but not limited to any breach of the relevant provisions of MCOB (or any successor codes of conduct) relating to the accuracy of any KFIs supplied to a mortgage applicant.

4.3 At all times during the Term, you shall permit Mortgage Brain to access and use data including data forming part of Mortgage Brain Content for any or all of the following purposes:

4.3.1 in connection with obtaining quotes for other products offered by the Lenders or other financial product providers/brokers where you have opted to receive such quotes; and

4.3.2 in connection with the business activities of Mortgage Brain and its Affiliates from time to time.

4.4 At all times during the Term, you shall permit Mortgage Brain to access and use data relating to your operating system, browser and other hardware information for the purposes of customer support and statistical analysis.

5 Fees, Invoicing and payment

5.1 If you are a Corporate User, you shall be permitted to use the Platform, Services and Mortgage Brain Content provided Mortgage Brain receives payment of the Mortgage Brain Fee and any other fees and charges under the relevant Corporate Agreement.

5.2 The following provisions of this clause ‎5 do not apply to those Services you are permitted to access pursuant to a Corporate Agreement.

5.3 You will pay to Mortgage Brain the Mortgage Brain Fee monthly in advance by direct debit in GBP.

5.4 Mortgage Brain reserves the right to implement (and you shall pay) additional fees and charges for additional services, elements or for services / elements which were previously provided at no charge on the giving of three (3) calendar months’ prior notice. If you reject such charges (by sending a notice to Mortgage Brain at intermediary@mortgagebrain.co.uk), you shall not use the services or elements those charges relate to.

5.5 Mortgage Brain reserves the right to implement (and you shall pay) additional fees and charges based on storage of Customer Content on the giving of three (3) months’ prior notice. If you reject such additional fees and charges (by sending a notice to Mortgage Brain at intermediary@mortgagebrain.co.uk), you shall reduce the volume of Customer Content stored by Mortgage Brain to a level set by Mortgage Brain where no additional fee or charge applies or Mortgage Brain may terminate these Terms and Conditions on the giving of one (1) months’ notice.

5.6 All sums due are exclusive of VAT and other duties or taxes (if applicable) which you shall pay in addition and at the same time as the Mortgage Brain Fee.

5.7 No payment shall be considered paid until it is received by Mortgage Brain in cleared funds in full.

5.8 All amounts due under these Terms and Conditions shall be paid in full without any set-off, deduction or withholding other than as required by law and you shall not be entitled to assert any credit, set off or counterclaim against Mortgage Brain in order to justify withholding payment of any such amount in whole or in part excepting only any credits agreed by Mortgage Brain in advance in writing.

5.9 Notwithstanding clause ‎5.4‎ and clause 5.5, Mortgage Brain may increase the Mortgage Brain Fee or other amounts payable to it by you on thirty (30) days’ notice (although not retrospectively), provided that:

5.9.1 no increase shall be implemented within twelve (12) months of any preceding increase for that specific Service; and

5.9.2 where the increase is more than the greater of both:

5.9.2.1 ten percent (10%); and

5.9.2.2 the then current annual all-items percentage figure in the consumer prices index (or, if that index ceases to exist, its closest replacement index) published by the UK’s Office of National Statistics before the increase,

then you may terminate these Terms and Conditions on provision of no less than one (1) months’ notice, such notice to expire no more than three (3) months after the notice of price increase was initially provided.

5.10 If Customer fails to pay the Mortgage Brain Fee in accordance with Clause 5.3, Mortgage Brain may charge Customer interest on a daily basis at a rate of two percent (2%) per annum above the then current base rate of Bank of England from the date the payment became due until payment is made or this Agreement terminate or expires.

5.11 Mortgage Brain will not be entitled to charge interest on late payments disputed and withheld by Customer (unless the amount not paid is subsequently determined in accordance with the Dispute Resolution Procedure to be validly due to Mortgage Brain).

6 DATA PROTECTION AND DATA USE

6.1 You agree that Mortgage Brain will be permitted to Process Personal Data in accordance with this clause ‎6 and Mortgage Brain’s Privacy Policy (found at www.mortgagebrain.com/privacy-policy/) as updated from time to time (“Data Processing Activities”).

6.2 In respect of its Processing of any Personal Data, each party will comply at all times with all Data Protection Legislation at its own expense unless otherwise stated in these Terms and Conditions.

6.3 You will:

6.3.1 manage and provide a privacy notice to financial product applicants which will contain all information required to comply with Data Protection Legislation; and

6.3.2 ensure that you have obtained any consents necessary from the financial product applicant in respect of the applicant’s Personal Data in accordance with Data Protection Legislation.

6.4 You acknowledge that the functionality of the Platform and Services allows Mortgage Brain to collect and record information relating to your use of the Platform and those Services including details regarding those that you represent. This information enables the analysis and understanding of market trends in relation to the recommendation and purchasing of financial products. Mortgage Brain may hereby view, monitor, collect and record such information input by Customer or its customers into the Services or derived therefrom (including via APIs) and collate, compile, reformat, reproduce, adapt, translate, arrange, publish, sell, distribute, deal with or otherwise commercialise any part of such information or otherwise makes it available to any third party on such terms as Mortgage Brain deems appropriate provided this is only ever done on an aggregate, generic and anonymous basis in a manner that does not identify Customer or those that Customer represents. Mortgage Brain confirms that it shall not commercialise or distribute to any third party any information which is Personal Data.

7 PERSONNEL

7.1 Each party will:

7.1.1 assume full responsibility for the management of their Personnel. The acts and omissions of their Personnel will be deemed to be those of the relevant party; and

7.1.2 ensure that its Personnel do not hold themselves out as being employees of the other party.

7.2 Each party will ensure that it has sufficient Personnel to perform its obligations under these Terms and Conditions and will procure that its Personnel:

7.2.1 act in a manner that does not cause their relevant party to be in breach of these Terms and Conditions;

7.2.2 maintain standards of conduct, efficiency and punctuality in accordance with good industry practice; and

7.2.3 comply with all reasonable requests and directions issued by or on behalf of Mortgage Brain in relation to the Platform and/or Services.

7.3 Mortgage Brain confirms that:

7.3.1 its Personnel are adequately trained, skilled, experienced and qualified at a level appropriate to provide the Services; and

7.3.2 it has obtained, at its own cost, all permits (including work and residency permits), licences or other authorisations as necessary and required to enable its Personnel to provide the relevant Services.

7.4 Each party will not directly or indirectly solicit, or offer employment or a contract to the other party’s (or its Affiliates’) Personnel:

7.4.1 during the Term; and

7.4.2 for a period of six (6) months after the end of the Term.

7.5 clause ‎7.4 will not restrict either party from hiring employees of the other party or its Affiliates who apply unsolicited in response to a general advertising or other general recruitment campaign.

8 INTELLECTUAL PROPERTY

8.1 Mortgage Brain hereby grants you a non-exclusive, non-transferable, irrevocable (for the Term) licence to access and use the Platform, relevant Services (and any subsequent enhancements or modifications) and relevant Mortgage Brain Content solely for the Purpose.

8.2 You shall permit Mortgage Brain and/or its authorised representatives to inspect and have access to any equipment that the Platform is accessed from to ensure that you are complying with your obligations under these Terms and Conditions.

8.3 You hereby grant Mortgage Brain a non-exclusive, non-transferable, irrevocable (for the Term) licence to use the Customer Content solely in the provision of the Platform, Services and as otherwise contemplated by these Terms and Conditions.

8.4 Except as permitted by law, you will not reverse engineer, decompile, recompile, decode, deconstruct or otherwise access or use the Platform, Services, Mortgage Brain Content or Systems in a manner which is inconsistent with the Purpose, could damage any part of the Platform, Services or Systems, or could cause harm to Mortgage Brain or any Related Party.

8.5 Except as permitted by these Terms and Conditions, you will not sub-license any license granted under clause ‎8.1 to any third party.

8.6 Mortgage Brain and/or its licensors will own the Intellectual Property Rights subsisting in and arising from the Platform, Services and Mortgage Brain Content.

8.7 You will not acquire any rights to any Intellectual Property Rights owned by Mortgage Brain and/or its licensors, whether pre-existing or created during the Term.

8.8 You and/or your licensors will own the Intellectual Property Rights subsisting in the Customer Content.

8.9 Mortgage Brain will not acquire any rights to any Intellectual Property Rights owned by you and/or your licensors, whether pre-existing or created during the Term.

8.10 You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use Customer Content. Mortgage Brain will use Customer Content in the provision of the Platform and Services, and confirm your compliance with these Terms and Conditions.

8.11 You will not have the right to use Mortgage Brain trademarks, logos or brands for any purpose without Mortgage Brain’s prior written consent (such consent given by an authorised party) and then only if used in compliance with Mortgage Brain’s relevant brand guidelines.

8.12 Mortgage Brain will have the right to use your trademarks, logos and/or brand for inclusion in Mortgage Brain promotional materials.

8.13 You hereby indemnify Mortgage Brain, its Affiliates and each Related Party against all losses, damages, costs and expenses suffered or incurred by such parties arising out of or in connection with any claim made by a third party against Mortgage Brain alleging infringement of that third party’s Intellectual Property Rights as a result of Mortgage Brain’s, any Affiliate’s or any Related Party’s access or use of any part of the Customer Content.

8.14 Mortgage Brain hereby indemnifies you against all losses, damages, costs and expenses suffered or incurred by you arising out of or in connection with any claim made by a third party against you alleging infringement of that third party’s Intellectual Property Rights as a result of your access or use of the Platform or Services.

8.15 The party providing an indemnity under clause ‎8.12‎8.13 or ‎8.14 (as applicable) (the “Indemnifying Party”) will have sole control of the defence or any related settlement of a claim subject to the indemnity in that clause, provided that the Indemnifying Party:

8.15.1 keeps the other party (the “Indemnified Party”) informed of all developments relating to such defence or settlement;

8.15.2 provides the Indemnified Party with any information reasonably requested over the course of proceedings on the Indemnified Party’s written request;

8.15.3 complies with the Indemnified Party’s reasonable directions relating to such defence or settlement; and

8.15.4 notifies the Indemnified Party in writing prior to making or accepting any offer of settlement in respect of the claim.

8.16 In respect of any claim subject to the indemnity in clause ‎8.13 or ‎8.14 (as applicable), the Indemnified Party will, on the Indemnifying Party’s written request and at the Indemnifying Party’s expense, provide the Indemnifying Party with reasonable assistance in conducting the defence or settlement of the claim.

9 IT AND DATA SECURITY

9.1 In connection with these Terms and Conditions, you will:

9.1.1 take all steps to prevent any Viruses being introduced into the Platform or any part of the Systems; and

9.1.2 use the current release of Virus detection software.

9.2 You will:

9.2.1 not use or reproduce Mortgage Brain Content, in whole or in part in any form, except as expressly permitted by Mortgage Brain in accordance with these Terms and Conditions, as required for the Purpose;

9.2.2 if you store any Mortgage Brain Content, keep such Mortgage Brain Content physically and logically separate from other data and treat it as Mortgage Brain’s Confidential Information;

9.2.3 apply appropriate security procedures within your premises and take all precautions necessary to preserve the confidentiality and integrity of Mortgage Brain Content;

9.2.4 perform regular and secure backups of all Mortgage Brain Content in your possession or control;

9.2.5 procure that no unauthorised third party will, as a result of any act or omission by you or your Personnel, obtain access to any Mortgage Brain Content or any information forming part of or being used in connection with the Platform and/or Services;

9.2.6 ensure that you and your Personnel do not deliberately or negligently corrupt, erase or otherwise alter such Mortgage Brain Content;

9.2.7 not disclose passwords supplied by Mortgage Brain to access the Platform to any person; and

9.2.8 as soon as practicable notify the relevant member of Mortgage Brain of any breach of clause ‎9.2 and take all steps to mitigate or avoid such breach (and prevent it from reoccurring).

10 CONFIDENTIALITY

10.1 Except to the extent set out in this clause ‎10, or otherwise expressly permitted in these Terms and Conditions, each party will:

10.1.1 treat the other party’s Confidential Information as confidential;

10.1.2 use the other party’s Confidential Information solely for the specific purpose or purposes for which it was disclosed; and

10.1.3 not publish or otherwise disclose to any person the other party’s Confidential Information without the owner’s prior written consent,

and without limiting the generality of this clause ‎10.1:

10.1.4 not disclose the other party’s Confidential Information to, or in the presence of, any person other than its Personnel having a need to know in connection with these Terms and Conditions;

10.1.5 advise any Personnel to whom the other party’s Confidential Information is to be disclosed of their obligations with respect to the Confidential Information prior to such disclosure and to ensure their compliance with such obligations; and

10.1.6 take all action reasonably necessary to secure the other party’s Confidential Information against theft, loss or unauthorised disclosure.

10.2 Each party may disclose Confidential Information which would otherwise be subject to clause ‎10.1 but only if it can demonstrate that:

10.2.1 such disclosure is required by applicable law or by order of a court of competent jurisdiction or pursuant to a binding order or direction of a tax or fiscal authority or other relevant regulatory body; or

10.2.2 the Confidential Information is lawfully in the receiving party’s possession without an obligation restricting disclosure at the time of receipt from the disclosing party; or

10.2.3 on a date subsequent to disclosure being made, the Confidential Information becomes part of the public domain, other than through a breach of clause ‎10.1; or

10.2.4 disclosure to the receiving party’s professional advisors is necessary for the purposes of receiving professional advice in relation to these Terms and Conditions;

10.2.5 provided always that:

10.2.6 the onus will be on the party disclosing the Confidential Information to prove that the disclosure is pursuant to this clause ‎10.2; and

10.2.7 if a party is required to make a disclosure in accordance with clause ‎10.2.1, that party will, if it is not so prohibited by applicable law, provide the other party (at the expense of that other party) with prompt notice of any such requirement or request so the other party may seek an order that the Confidential Information does not have to be disclosed and/or an appropriate protection order or assurance that confidentiality is accorded to the information that is required to be disclosed.

10.3 These Terms and Conditions will not result in you obtaining access to information of any other customer of Mortgage Brain.

11 Warranties

Each party warrants to the other party that:

11.1 it has full capacity, power and authority to enter into, deliver and perform its obligations under and in accordance with these Terms and Conditions (and all other documents (if any) to be entered into by it under the Terms and Conditions);

11.2 there are no existing agreements or arrangements with third parties or orders, judgments or decrees, the terms of which prevent it from entering into these Terms and Conditions, nor are there any actions, suits, proceedings or regulatory investigations pending or threatened against or affecting it or any of its Personnel that may affect the ability of the party to perform its obligations under these Terms and Conditions; and

11.3 at the Start Date and during the Term it has (and will continue to have or hold):

11.3.1 all necessary licences, permits, consents and regulatory approvals from relevant regulatory bodies necessary to perform its obligations under these Terms and Conditions; and

11.3.2 full access and right to all relevant technical information, Personnel, expertise and data, which is or might reasonably be required for the supply of the Services.

12 Liability

12.1 Subject to clause ‎12.3, Mortgage Brain will not be liable in contract or tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms and Conditions for any loss of profit, loss of revenue, loss of goodwill or business, or for any indirect or consequential losses.

12.2 Subject to clauses ‎12.1 and ‎12.3, Mortgage Brain’s total liability arising out of or in connection with the Terms and Conditions shall be limited to 110% of the total sums paid by you to Mortgage Brain, in aggregate under these Terms and Conditions, during the twelve (12) months preceding the date on which any claim for damages or losses first arose.

12.3 Nothing in these Terms and Conditions limits or excludes the liability of either party:

12.3.1 for death or personal injury arising out of its negligence, or that of its Personnel;

12.3.2 for losses suffered by the other party arising out of either party’s fraud, wilful misconduct or the tort of deceit; or

12.3.3 for breach of any obligations implied by section 2 of the Supply of Goods and Services Act 1982.

12.4 Mortgage Brain will not be liable for any losses arising out of or relating to:

12.4.1 any reduced Platform functionality or performance caused by the unavailability or degradation of any third party’s Systems; or

12.4.2 any Customer Content being incorrect or incomplete.

13 TERMINATION

13.1 Either party may terminate these Terms and Conditions in their entirety or terminate a specific Service at any time by giving the other party no less than three (3) months' written notice.

13.2 Either party may terminate these Terms and Conditions in their entirety or terminate a specific Service by giving written notice to the other party (such termination to be effective upon on the expiry of the period of time set out in that notice) if the other party commits a material breach of these Terms and Conditions that cannot be remedied or, if it is capable of remedy, that has not been remedied within twenty (20) Business Days of receiving notice of the breach from the terminating party. A material breach includes a breach of clause ‎16 or clause ‎17.

13.3 Mortgage Brain may terminate these Terms and Conditions in their entirety or terminate a specific Service by giving written notice to you (such termination to be effective upon on the expiry of the period of time set out in that notice), if:

13.3.1 you fail to comply with clause ‎3 or ‎4;

13.3.2 you suffer from bankruptcy or similar event;

13.3.3 you fail to pay any part of the Mortgage Brain Fees; or

13.3.4 you undergo a change of Control.

13.4 Notwithstanding any other provision in these Terms and Conditions, if you are a Corporate User, you agree that these Terms and Conditions shall automatically terminate with respect to those Services you are permitted to access pursuant to a Corporate Agreement if:

13.4.1 the Corporate Agreement terminates or expires; or

13.4.2 you are no longer employed or engaged by the organisation that is the party to the Corporate Agreement with Mortgage Brain.

14 Consequences of Termination

14.1 Expiry or termination of these Terms and Conditions for whatever reason will not affect or prejudice the rights and obligations of the parties which have accrued in accordance with this clause ‎14 or otherwise have accrued due on or before or arising out of termination or expiry, including the right to claim damages in respect of any breach of these Terms and Conditions which existed at or before the date of termination or expiry.

14.2 Upon expiry or termination of these Terms and Conditions:

14.2.1 each party will return to the other party (or destroy if requested by the other party in writing) all Confidential Information of the other party and will certify that it does not retain the other party’s Confidential Information;

14.2.2 all licences granted under these Terms and Conditions will immediately terminate and you will immediately cease all access and use of the Platform and Services;

14.2.3 except as set out in clause ‎14.2.4, each party will return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party; and

14.2.4 Mortgage Brain shall retain the Mortgage Applicant Data existing in the Platform or Service for six (6) months beyond the end of the Term in order to address data queries following termination. All such Mortgage Applicant Data shall then be anonymised and no longer be accessible or otherwise available to you.

15 FORCE MAJEURE

15.1 Neither party shall be liable under these Terms and Conditions if a party is prevented from or delayed in performing its obligations under these Terms and Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving your workforce, that of Mortgage Brain or any other party), failure of a utility service or transport or telecommunications network, 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 or default of suppliers or sub-contractors (“Force Majeure”), provided that you or Mortgage Brain (as applicable) notifies the other party of such an event and its expected duration.

15.2 If the Force Majeure event prevents a party from meeting any of its obligations for more than thirty (30) days, the other party may terminate these Terms and Conditions immediately by written notice.

16 Modern Slavery

Both parties shall comply with all applicable laws, statutes, regulations, guidance and codes from time to time in force in relation to offences involving slavery and human trafficking (including but not limited to the UK’s Modern Slavery Act 2015) (the “Anti-Slavery Laws”).

17 Bribery

17.1 The parties shall each:

17.1.1 comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the UK’s Bribery Act 2010;

17.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the UK’s Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

17.1.3 have in place, and maintain throughout the Term, its own policies and procedures, including adequate procedures under the UK’s Bribery Act 2010, the relevant policies and this clause ‎17, and will enforce them where appropriate;

17.1.4 ensure that all associated persons and persons who are performing services or providing or leasing goods in connection with these Terms and Conditions comply with this clause ‎17; and

17.1.5 on request by the other party, certify to the other party in writing, compliance with this clause ‎17 and all persons associated with it and all other persons for whom it is responsible under this clause ‎17 and shall provide such supporting evidence of compliance as the other party may reasonably request.

17.2 Each party warrants that, as at the date of these Terms and Conditions, such party has no foreign public officials as officers, majority shareholders or direct or indirect owners.

17.3 For the purpose of this clause ‎17, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the UK’s Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause ‎17.3, a person associated with a party includes its sub-contractors.

17.4 You agree that you are firmly committed to maintaining the highest standards of business ethics, honesty, openness and accountability, and that your policy on the subject of "whistle blowing" includes guidelines to all Personnel, but also to individuals who work with you, including third party contractors, who feel they need to raise matters of concern relating to you in confidence.

17.5 Neither party shall be liable for any disclosures made in accordance with its obligations under its whistle blowing procedures from time to time.

18 GENERAL

18.1 The parties to these Terms and Conditions do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

18.2 Except as expressly provided for in these Terms and Conditions, nothing in these Terms and Conditions shall be construed as creating a partnership or joint venture of any kind between the parties. Neither party shall have the authority or power to bind the other party.

18.3 You shall not assign, sublicense or otherwise transfer these Terms and Conditions or any of its rights or obligations whether in whole or in part without the prior written consent of Mortgage Brain.

18.4 Mortgage Brain may assign, sublicense or otherwise transfer these Terms and Conditions or any of its rights or obligations whether in whole or in part.

18.5 No failure of either party to enforce its rights under these Terms and Conditions at any time for any period shall be construed as a waiver of such rights.

18.6 If any provision in these Terms and Conditions is found or held to be invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of these Terms and Conditions which shall remain in full force and effect. However, if the severed provision is essential and material to the rights or benefits received by either party, the parties shall use their best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly effects their intent in entering into these Terms and Conditions.

18.7 Unless there is a relevant Corporate Agreement, these Terms and Conditions constitute and contain the entire agreement of the parties and supersedes any and all prior agreements, negotiations, correspondence, representations (except fraudulent representations), understandings and communications between the parties, whether written or oral, respecting the subject matter.

18.8 You acknowledge and agree that, in entering into these Terms and Conditions, you have not been induced to enter into these Terms and Conditions by any representation or warranty other than those contained in these Terms and Conditions and, having freely entered into these Terms and Conditions, agree that you shall have no remedy in respect of any other representation or warranty except in the case of fraud.

18.9 All notices that are required to be given under these Terms and Conditions shall be in writing and shall be sent to the registered addresses as appropriate of each party, or as otherwise notified to the other, by first class pre-paid letter or email and shall be deemed to have been received:

18.9.1 by first class post, forty-eight (48) hours after the date of mailing;

18.9.2 by email to Mortgage Brain at intermediary@mortgagebrain.co.uk immediately upon dispatch provided no error or undeliverable message is generated in respect of that transmission; or

18.9.3 by email to you at the email address you gave when you registered on the Platform immediately upon dispatch provided no error or undeliverable message is generated in respect of that transmission.

18.10 These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales and the parties hereto irrevocably submit to the exclusive jurisdiction of the English Courts.

19 DEFINITIONS

“Affiliate(s)” means, with respect to any person or entity, any other person or entity that Controls, is Controlled by, or is under common Control with such person or entity, from time to time but only for so long as such Control exists.

“Bank Holidays” means a day on which the banks in England are not customarily open for business, other than a weekend.

“Business Day” means a day other than a Saturday, Sunday or a Bank Holiday.

“Business Hours” means between the hours of 09.00 to 17.30 on a Monday through to Friday (inclusive) in the United Kingdom, not including:

(a) between 09.00 and 10.00 on Wednesdays;

(b) any public or statutory holidays in England and Wales; or

(c) after 12pm on Christmas Eve and New Years Eve in England and Wales.

“Confidential Information” means any and all information and data, however conveyed or presented and whether technical or commercial, disclosed by one party to the other or obtained or received by a party as a result of entering into or performing its obligations under this Agreement, together with any information relating to:

(d) the negotiation of the Terms and Conditions;

(e) the provisions and subject matter of the Terms and Conditions; or

(f) any other information clearly designated by a party as being confidential to it, or which by its nature should be treated as confidential (whether or not marked “confidential”) which may come into the receiving party’s possession or into the possession of any of its Personnel as a result of or in connection with the Terms and Conditions, and references to Mortgage Brain’s Confidential Information include Mortgage Brain Content, and references to your Confidential Information include Customer Content.

“Control” means the direct or indirect power to direct the management and policies of an entity or the composition of its board of directors or equivalent body, whether through the ownership of shares, by contract, or otherwise, and “Controlled” and “Controlling” shall be construed accordingly.

“Corporate User” means a user of the Platform and recipient of the Services pursuant to a Corporate Agreement.

“Customer Content” means data and information belonging or relating to you, and each mortgage applicant (including Mortgage Applicant Data) or other customer of yours, which may or may not include Personal Data, as well as data and information you input or otherwise include on the form(s) or upload on to the Platform.

“Data Protection Laws” or “Data Protection Legislation” means any applicable laws in force in the United Kingdom from time to time that relates to data protection, the processing of personal data and privacy, including the Data Protection Act 2018, the UK GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and references to “Data Processor”, “Data Subjects”, “Personal Data”, “Process”, “Processed”, “Processing”, “Processor” and “Supervisory Authority” have the meanings set out in, and will be interpreted in accordance with, such laws.

“FCA” means the Financial Conduct Authority.

“FSMA” means the Financial Services and Markets Act 2000 and any of its accompanying rules and regulations, and any relevant successor acts including equivalent legislation in ROI.

“Intellectual Property Rights” means all intellectual and industrial property rights including patents, copyright, know-how, registered and unregistered trademarks, registered designs, design rights, database rights, applications for and rights to apply for any of the foregoing, and any other rights in or arising out of any invention, discovery, process or service.

“KFI” means the key facts illustration produced by (i) the Lender or (ii) the Platform in accordance with the MCOB for use by you and to supply to a mortgage applicant.

“Lender(s)” means any mortgage provider who provides data including mortgage product information to Mortgage Brain for inclusion on the Source Database. In the case of verified product details, “Lender(s)” may include the providers of exclusive or re-badged mortgage products (e.g. from a corporate or network customer).

“MCOB” means the Mortgage Conduct of Business Sourcebook (or any successor code) comprising part of the FCA’s Handbook of Rules and Guidance.

“Mortgage Applicant Data” means the data (including Personal Data) provided by a mortgage applicant in respect of a mortgage enquiry whereby you have obtained all relevant permissions from the mortgage applicant for such data to be processed by Mortgage Brain via the Platform and Lenders.

“Mortgage Brain Content” means any data information, text, drawings or other material (in whatever form and on any medium including all electronic, optical, magnetic and tangible media) relating to or generated by Mortgage Brain, the Platform, from the Services, or any Personnel of Mortgage Brain, and which is distributed to you in accordance with the Terms and Conditions. Mortgage Brain Content excludes any Mortgage Applicant Data.

“Mortgage Brain Fee” means all the fees payable under the Terms and Conditions by you or payable under a relevant Corporate Agreement to Mortgage Brain pursuant to clause ‎5.

“Mortgage Brain Help Desk” means the helpdesk discussed at Schedule 1 (Services) provided as Software Support.

“Personnel” means employees, agents, consultants, contractors and sub-contractors and their employees, agents, consultants, contractors and sub-contractors.

“Platform” means the Mortgage Brain platform by which you can access and use the Services and which includes the Software and related Systems.

“Purpose” means the purpose for which Mortgage Brain permits you to use the Platform and Services as set out in the table at Schedule 1 (Services).

“Related Party” means any broker, marketplace, consultant, contractor, advisor or any other third party engaged by Mortgage Brain.

“Schedule” means the schedules appended to the Terms and Conditions and which form part of the Terms and Conditions.

“Services” means the services to be provided to you as set out in Schedule 1 (Services) and the provision of information Mortgage Brain considers relevant, which shall include the provision of Software Support.

“Software” means Mortgage Brain’s proprietary software used in the provision of the Platform and Services.

“Software Support” has the meaning given to it in Schedule 1 (Services).

“Source Database” means the databases owned, managed and run by Mortgage Brain which has information on available mortgage products in the UK, certain overseas countries and the Republic of Ireland (ROI), which is accessed whenever you login to the Platform.

“Start Date” means the date when you have accepted the Terms and Conditions by clicking on the acceptance button below.

“Systems” means network connections, telecommunication systems, computer programs, software (including application programming interfaces (APIs)), computer and communications networks, hardware, firmware, servers, devices, cabling and related equipment, databases, and the tangible media on which they are recorded.

“UK GDPR” means as set out in the Data Protection, Privacy and Electronic Communications (Amendments, etc.) (EU Exit) Regulations 2019/419.

“Virus” means a computer virus, ‘trojan horse’, worm, logic bomb, back door or similar item whose purpose or possible function is to disable a computer or network or adversely affect its performance and any other thing or device which may impair or otherwise adversely affect the operation of any computer or network, prevent or hinder access to any program or data, impair the operation of any program or the reliability of any data (whether by re-arranging within the computer or any storage medium or device, altering or erasing, the program or data in whole or part or otherwise).

“Software Support”: Mortgage Brain shall support your use of the Platform through providing training, and our customer service helpline and messaging service is available between the hours of 09.00 to 17.30 on a Monday through to Friday (inclusive) in England, not including:

- between 09.00am and 10.00am on Wednesdays in the United Kingdom;

- any public or statutory holidays in England and Wales; or

- after 12pm on 24 December and 31 December in the United Kingdom.

Telephone calls that you make to Mortgage Brain’s customer services help line (such helpline can be found on www.mortgagebrain.com) may be monitored and/or recorded. This will help us to train our staff and improve our service. A recording will only be used under proper and careful supervision.

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