Terms of Business
The following terms constitute the Terms of Business (Edition 9) (the “Terms of Business”) of Claim 2 Gain Limited to provide personal consultancy services as described below. They will apply to all transactions between both parties, unless varied in writing.
1 Interpretation
For the purposes of these Terms of Business: 1.1 references to “we”, “us” and “our” are Claim 2 Gain Ltd (“C2G”)
1.2 references to “you” and “your” are to the person or persons to whom our Terms of Business is addressed;
1.3 “compensation payment” means an amount of compensation, redress payment or refund amount agreed to be paid by the product provider, bank, building society or selling agent;
1.4 “consultancy services” means the services to be provided in accordance with these Terms of Business;
1.5 “Letter of Authority” means the letter to be signed and returned by yourself to C2G in order to authorise C2G to act as your representative in all dealings in respect of your claim against a product provider and confirming acceptance of these Terms of Business
1.5 “product provider” means an insurance company, independent financial adviser, investment management company, bank, building society or other third party offering investment products or services and is not restricted to the specific definition of these words in the FSA Handbook.
1.6 We give independent advice in connection with the consultancy services we are providing and you authorise us to act as your authorised representative when dealing with product providers.
2 Conduct
2.1 We shall carry out your instructions in accordance with applicable professional standards. We shall act in your best interests in pursuing any claim for compensation and obtaining for you the best result reasonably obtainable.
2.2 We shall conduct consultancy services for you only when you have instructed us to do so.
2.3 Where we have given specific advice for you, unless you specifically request us to do so in writing, we shall not have any responsibility:
2.3.1 for the continuing validity of that advice;
2.3.2 to advise you about your financial position when changes are made; or
2.3.3 otherwise, to consider your financial position at any time in the future.
3 Scope and basis of our work
3.1 The consultancy services that C2G offer will include advice on your complaint against a product provider in respect of any financial product or service, including products or services not regulated by the Financial Services Authority.
3.2 Before we are able to evaluate your claim against a product provider, we are required to hold and process information about your personal and financial situation, your objectives and your attitude to risk. In consequence it will be necessary for you, and you agree, to provide us with details of your personal and financial circumstances, your investment objectives, the level of risk that you were prepared to take, and such other information and documents that we may specifically request.
3.3 We will rely on the information and documents that you provide us with as being true, correct and complete. We will not audit, test or check such information or documents except where this is inconsistent with our obligations under the law. You should let us know immediately of any changes that might affect the service and advice we provide you.
3.4 We will agree with you in writing, periodically and when necessary, the scope of our consultancy services. We will be willing to add to or change the scope of consultancy services at any time, but such additions or changes must be first agreed in writing with us.
3.5 During the course of the provision of our consultancy services, we shall from time to time require your instructions. You must give us clear instructions which allow us to provide the consultancy services properly. You must not ask us to work in any improper or unreasonable way; you must not deliberately mislead us and you must co-operate with us when asked.
4 Communication
4.1 Unless otherwise instructed, we shall communicate with you at your home address, normally by letter sent by normal postal services or, where appropriate, courier services. We shall send you letters by fax to an agreed fax number only where specifically instructed or where the matter is one which, in our judgement, justifies such method of communication.
4.2 We undertake to use our reasonable endeavours to ensure that any e-mails that we send to you (and/or to your nominated professional adviser or agent) are free from viruses and any other material that may cause inconvenience or harm to any other computer system, and you undertake to do likewise with any e-mails that you send to us.
4.3 You and we understand and acknowledge that the transmission of e-mails on the Internet or otherwise has inherent risks. Neither we nor you shall have any responsibility or liability to each other where any e-mail (whether sent by us, by you or by your nominated adviser or agent) is lost, delayed, intercepted, corrupted or otherwise altered is rendered incomplete or fails to be delivered, except and only to the extent finally determined to have resulted from bad faith or wilful default.
4.4 We shall act on instructions given by you or, where we have received a notice from you in writing, by any professional adviser or other nominated representative.
4.5 We shall accept instructions from you or your nominated representative orally (in person or by telephone), in writing or by e-mail, but we shall not proceed with any consultancy services for you until we have received express instructions in writing or by e-mail.
4.6 When we receive any such instructions, we shall act on them as soon as is reasonably practicable unless specifically requested not to do so.
4.7 To enable us to provide the optimum service to you, there may be occasions when we need to contact you without your express invitation, and you agree that we may do so. We shall contact you only between 09:00 and 19:00 Monday to Friday.
5 Fees payable if we are successful with your claim
5.1 You agree to pay us a fee equal to 25%, plus VAT, of any compensation amount offered if we are successful with your claim.
5.2 A minimum fee of £100 plus VAT maybe charged. Following an initial review and before a claim has been submitted, where we feel a compensation payment may not be covered by this minimum charge or this minimum charge may be greater than 25% of the compensation offer we will offer you the opportunity to cancel our services without any charge or we may request a refundable deposit is paid before any further work is carried out. This deposit will only be refunded if a final decision is reached and no compensation is offered and no further appeals can be made.
5.3 You agree that we may receive the compensation payment from the product provider on your behalf. Any payments received on your behalf will be held in our ‘Client Account’ which is completely separate from our Business account.
5.4 Value Added Tax (VAT) at the standard rate, currently 17.5%, to be added to our fee.
5.5 The fee applies to each individual policy investigated by C2G not the aggregate of all claims.
5.6 C2G reserves the right to negotiate terms in connection with any individual case. The fee shall not apply in circumstances where:
5.6.1 you wish to appeal the amount of an offer received from a product provider; or
5.6.2 you wish to challenge the rejection by a product provider of your claim by appealing to the Financial Ombudsman Service. In these circumstances C2G will provide you with a separate fee estimate and your written agreement to vary these Terms of Business with regards to fees shall be required to enable C2G to pursue your claim further.
5.7 You agree to notify C2G, within 5 working days, of any payments of compensation, whether in part or full, made to you directly by the product provider in connection with the complaint we are handling on your behalf. Any payments received by you which C2G has not been notified about may accrue interest in accordance with Clause 5.9 (below). Upon receipt of notification of a payment made to you directly you will be issued with an invoice, based on the amount paid, and agree to pay the invoice within 14 days in accordance with clause 5.9 (below).
5.8 It is normal practice for companies to “cap” their liability at the date of claim (or a past date, in respect of complaints against mis-sold endowments, if you no longer use the contract for mortgage purposes). This will enable a redress calculation to be prepared to establish any loss you have incurred as a result of the purchasing the mis-sold contract. Some companies elect to deal with any shortfall by guaranteeing that the policy will provide the Target Sum Assured at maturity. On these occasions we would calculate our fee on the equivalent “capped” compensation amount at the current time. This will reflect the current value of the uplift in the endowment policy value.
5.9 You agree to pay the fee within 14 days of receiving our invoice. Any outstanding balance beyond this date will accrue interest at Nat West Base rate plus 6% and may incur further late payment penalties including but not limited to £12 for each piece of correspondence sent in retrieving the payment, until payment is made or terms agreed for payment of the outstanding debt. Should payment remain outstanding beyond 30 days we reserve the right to pass your case onto a debt collection agency who will attach further charges to our fees. Should your case be passed to a debt collection agency we cannot accept or negotiate any payments directly.
6 What happens if your claim is rejected
6.1 If we are not successful in achieving an offer to pay compensation following your claim you do not have to pay a fee to us.
7 Client Service
7.1 If at any time you wish to make a complaint about any aspect of the advice or service you have received from C2G the matter will be dealt with through our internal complaints handling procedure, a copy of which is available, through our website or upon request.
7.2 Nothing in these Terms of Business shall preclude C2G or any of its directors or employees from taking such steps as are necessary in order to comply with the professional or ethical rules of any relevant professional body of which a director or employee is, at the time, a member.
8 Data Protection Act 1998
8.1 During the period of our engagement we shall request information about your personal and financial situation from you. It may be appropriate to obtain some of the information about your personal and financial situation from third parties (for example, from other firms which act, or have acted, as your professional advisers).
8.2 The information that we obtain about your personal and financial situation may constitute “personal data” or “sensitive personal data” under the Data Protection Act 1998 (“the 1998 Act”). By signing these the client agreement, you expressly consent that we may:
8.2.1 carry out such processing (whether obtaining, recording or holding) of such data as is necessary to enable us to carry out your instructions;
8.2.2 disclose such data to such advisers or other third parties as is necessary to enable us to provide our advice to you. For example, we may have to disclose such data to one or more product provider in order to obtain quotations or projections for you;
8.2.3 hold such data in our files for as long as necessary for the purposes of providing the consultancy services; and in accordance with our internal retention policies and
8.2.4 using our knowledge of your personal and financial situation, bring to your attention, from time to time, information that we believe may be of interest to you, unless you have informed us that you do not wish to receive any such information.
8.3 If requested by you in writing, we shall (for a fee not exceeding the maximum fee prescribed in the 1998 Act) provide you with details of the data that we hold about you. You undertake to advise us if any such details are incomplete, inaccurate or out of date.
8.4 If requested by you in writing, we shall provide you with details of the third parties (referred to in paragraph 8.2.2 above) to which we have disclosed information about your personal and financial situation.
9 Confidentiality
9.1 Subject to paragraph 8.2.2 above, we shall not, without your prior written consent, disclose any confidential information concerning your personal or financial situation to third parties (except to other professional advisers) whom we may consult in relation to our work (save to the extent that the information is in the public domain), unless otherwise required by law, a court of competent jurisdiction, HM Revenue and Customs or any other government or regulatory authority.
9.2 All information and advice written or oral, of whatever nature, made available by us to you is for your sole use and shall not, without prior written consent, be disclosed or made available to any third party (save to the extent that the information is in the public domain otherwise than by breach of this clause) unless otherwise required by the law, a court or arbitrator of competent jurisdiction.
9.3 The working papers prepared as part of the consultancy service are our property, constitute confidential information and shall be retained by us in accordance with our policies and procedures. However, you or your nominated representative may inspect those working papers at any time during our normal business hours at our normal place of business if you give us reasonable notice.
10 Liability
10.1 C2G will perform the consultancy services with reasonable skill and care and acknowledges that it will be liable to you (up to the level of any fees received by C2G in respect of providing the consultancy service to you) for direct losses, damages, costs or expenses (“losses”) caused by its negligence or wilful default, subject to the following limitations:
10.1.1 C2G will not in any circumstances be liable to you for loss of profits, revenue or other types of economic loss; loss of business or contracts; loss of anticipated savings or goodwill; losses arising from loss of data; any losses which arise other than directly and naturally from a breach of contract, or other losses which a court holds to be consequential, special or indirect; any losses suffered by you arising from any claim against you by a third party for any of the aforementioned types of loss;
10.1.2 C2G will not be so liable if such losses are due to the provision of false, misleading or incomplete information or documentation or due to any acts or omissions of any person other than C2G; and
10.1.3 C2G shall have no other liability of any nature, whether in contract, tort or otherwise, for any losses whatsoever and howsoever caused arising from or in any way connected with the provision of the consultancy service.
10.2 Nothing in these Terms of Business shall exclude, restrict any liability arising from fraud or dishonesty or other liabilities which cannot lawfully be limited or excluded.
10.3 In this clause 10 “C2G” refers to Claim 2 Gain Limited, and its respective directors, staff and agents, and in all cases any successors or assignees.
10.4 You agree that you have fully considered the provisions of this clause and all the other provisions of these Terms of Business and that they are reasonable in the light of all the factors relating to the consultancy services.
11 Consumer Protection (Distance Selling) Regulations 2000
11.1 If you are a consumer (i.e. a person not instructing us for the purpose of your business) and if your instructions have not been given to us at a face to face meeting, the above Regulations apply and we ask that you sign the Letter of Authority confirming that you accept and understand these Terms of Business and return it to us as quickly as possible. On receipt of this we will regard ourselves as acting on your behalf.
11.2 You have the right to cancel your instructions to us, without any cost to you, within seven working days of our receiving these written instructions. You would cancel the agreement by either delivering a note cancelling your instructions to our office or by sending it to C2G by post, fax or e-mail.
11.3 You may not, however, cancel the agreement without incurring any cost once we have, with your permission, started to do the work on your behalf within these first seven days. By signing and returning the Letter of Authority, you are agreeing that, to avoid delay in the transaction, we may start work on your behalf straightaway and we do not have to wait for the cancellation period to expire.
11.4 We shall carry out your instructions as efficiently as possible, but the nature of the instructions means that we are unlikely to be able to perform the contract within the maximum period of 30 days as laid down by the Regulations. By signing and returning the Letter of Authority you are therefore agreeing that we need not perform the contract within a maximum of 30 days.
12 Third Party Rights
12.1 A person who is not a party to this agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this agreement.
13 Commencement, variation and termination
13.1 Your continued instructions in connection with your claim will amount to an acceptance of these Terms of Business. However, it may not be possible for us to start or continue work on your behalf until your signed copy or copies of the Letter of Authority and Client Agreement are returned to our office.
13.2 These Terms of Business may be varied or superseded at any time, in writing, by us. 13.3 These Terms of Business may be terminated by either party, with immediate effect, by giving notice in writing.
13.4 If you seek to terminate this agreement after the initial cancellation period set out in clause 11.2 and before C2G has received either an offer of a compensation payment or a rejection letter from a product provider, you agree to pay to C2G, within 14 days of request, a fee calculated by reference to the number of hours spent by C2G pursuing your claim against the product provider at a rate of £85 per hour plus VAT at the prevailing rate.
13.5 If you seek to terminate this agreement after C2G has received an offer of a compensation payment from a product provider, you agree to pay to C2G within 14 days of request the fee calculated by reference to the amount of the compensation payment offered by the product provider at the date of termination.
13.6 You may be requested to supply information or complete paperwork for the advisor. If we do not receive the requested documents within 28 days of the initial request we may assume you are terminating our services, without written notification, as detailed in clause 13.3 and will pursue the fees detailed in clause 13.4 or in accordance with 13.5 if an offer of compensation is achieved without this information, whichever is the greater.
14 Invalidity
14.1 If any provision (whether in whole or in part) of these Terms of Business is held to be illegal, invalid or unenforceable under any enactment or rule of law, such provision or part shall be deemed not to form part of these Terms of Business, and the legality and enforcement of the remainder of these Terms of Business shall not be affected.
15 Whole agreement
15.1 These Terms of Business set out the entire agreement between you and C2G. Neither party may rely on any agreement understanding or arrangement, which is not expressly set out in the Terms of Business. The Terms of Business shall not be amended, modified, varied or supplemented except in accordance with the provisions of clauses 4.5, 5.5 and 13.2 above
16 Applicable Law
16.1 These Terms of Business shall be governed by, and construed in accordance with, English Law.
16.2 The Courts of England shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning these Terms of Business and any matter arising from them. Each party irrevocably waives any right it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.