Intermediary Agreement with Commonwealth Bank of Australia Effective 1 January 2011
Intermediary Agreement with Commonwealth Bank of Australia
(ABN 48 123 123 124)
Effective 1 January 2011
Schedule A
Products, Services and Commission
Part 1:
Products
Home Loan Products
1.1
Standard Variable Rate Home Loan (Including 1 Year Guaranteed Rate, 12 month Discounted
Variable Rate and under Mortgage Advantage (MAV) conditions)
1.2
Standard Variable Rate Investment Home Loan (Including 1 Year Guaranteed Rate, 12 month
Discounted Variable Rate and under Mortgage Advantage (MAV) conditions)
1.3
Rate Saver Home Loan (Including 3 Year Special Rate Saver)
1.4
Rate Saver Investment Home Loan (Including 3 Year Special Rate Saver)
1.5
Fixed Rate Home Loan (including Mortgage Advantage (MAV) conditions)
1.6
Fixed Rate Investment Home Loan (including Mortgage Advantage (MAV) conditions)
1.7
Line of Credit – Residential Equity Rate (including Mortgage Advantage (MAV) conditions)
1.8
Equity Unlock Loan for Seniors*
*Note: Available only to those Nominees that maintain current SEQUAL accreditation
Additional CBA branded Home Loan Products for “Top Ups” See Part 7 Commission – Additional
Borrowings via Top- Ups (clause 7.4)
1.9
Economiser Home Loan (Including 3 year Special Economiser Home Loan)
1.10
Economiser Investment Home Loan (including 3 year Special Economiser Investment Home Loan)
1.11
Viridian Line of Credit- Residential Equity Rate
1 January 2011
CONNECT REFFERAL PROGRAM
CONNECT Cash Fulfilment Product Suite
1.12
Smart Access Account
1.13
Smart Access Overdraft Account
1.14
Smart Access Debit MasterCard Account
1.15
Complete Access Account
1.16
Complete Access Overdraft Account
1.17
Complete Access Debit MasterCard Account
1.18
All MasterCard Credit Card types
CONNECT Cash Referral Product Suite
1.19
Loan Protection
1.20
Personal Loans
1.21
Cash Investment Account
1.22
General Insurance
1.23
Risk Insurance
1.24
CommSec Margin Loans
1.25
Funds Under Management
1.26
Term Deposits
1.27
Business Transaction Account
1.28
Business Online Saver
1.29
NetBank Saver Account
1.30
Award Saver Account
Product Releases
1.31
From time to time we may vary, remove or add Products or services you or your Nominees are
authorised to refer to us under this Agreement. If we do so, we may by written notice or email
notification to you, vary, remove or add the terms of this Agreement, including remuneration or
other entitlements in respect of those products.
1 January 2011
Part 2:
Categories of Services
Sales Completion Services
2.1
Personally interview the potential customer.
2.2
Ensure the potential customer accurately completed the relevant Application Forms.
2.3
Insert the Intermediary identifying number on application form.
2.4
Provide to us all relevant information in support of the customer's application for the Product/s in
the format required by us or as agreed between us from time to time including:(a)
evidence of employment, income and assets including pay slips, group certificates, tax
returns and historical financial statements;
(b)
current year budget and forward projections;
(c)
Property Valuations where in existence;
(d)
other requirements for particular loans (e.g. Construction loans);
(e)
appropriate "re-finance documentation", for re-finance loans, or other loans where a
portion of the advance will re-finance other debts; and
(f)
any information and documents required for or in connection with the Client Identification
Procedure.
For identification, income and savings documentation only, original documents must be sighted.
Legible copies of these documents (either as hardcopy paper or electronic imaged) are to be
marked with "Originals Sighted" and dated. These copies are to be retained by you and are to be
made available to us upon request. If the Client Identification Procedure requires you to retain
information or originals or copies of documents, when required by us, you must provide us with
copies of any such information or documents.
All documents are to be forwarded to the nominated office of the Bank.
2.5
2.6
If we have given you written authorisation to do so, you may print our completed loan contract
and security documents when we notify you that these are ready for acceptance by a customer,
provided that you:
(a)
only use a printer that we have expressly approved, in writing, for this purpose; and
(b)
comply with all Procedures relevant to the printing, handling and delivery of such
documents.
In the case of loan Products, liaise between the client and us through our settlement processes
and ensure our settlement requirements, including Home and Building Insurance (if applicable),
have been satisfied, in order to facilitate an efficient settlement process.
1 January 2011
2.7
Except as set out in Schedule A Part 7- Additional borrowings via "Top Ups" and in Schedule A Part
8 -Trail on additional borrowings via "Top ups" and /or changes to the home loan product type
(Product Switch), we may not pay commission in respect of an application for a loan, an increase
in an existing loan, including “Top Ups”, or other product, if:
(a)
you fail to do any of the matters referred to in clauses 2.1 to 2.6 (inclusive);
(b)
the application is not submitted by you through the Third Party Banking Channel or is
approved and/or processed by any area of the Bank not related to Commonwealth Bank,
Third Party Banking; or
(c)
any other part of the work referred to in paragraphs 2.4 and 2.6 in respect of the
application has been undertaken or performed by other areas of our network, otherwise
than for clarifying or advising on how those services should be performed by you or for
sales completion or loan settlement purposes.
Repayment Alert Program (RAP) services
2.8
When providing Repayment Alert Program (RAP) services you and your Nominees must comply
with all of the terms and conditions for the RAP. These are set out in Parts 2 and 4 of Schedule B
to this Agreement.
2.9
Providing RAP services requires you or your Nominees to receive Personal Information relating to
customer payment arrears. You and your Nominees agree to treat the Personal Information you
receive for the RAP confidentially, and to use the information prudently, responsibly and solely to
provide credit management assistance to those customers who may require it.
1 January 2011
Schedule B
Terms and Conditions
Part 1:
Scope of Authority and Services
You must not:
1.1
act on our behalf or hold yourself out as representing us for any purpose or gain except as
authorised by this Agreement;
1.2
enter into contractual relations on our behalf or hold out or represent to any person that we have
or will give our approval to any Product unless we have given you written authority to do so;
1.3
submit applications for Products or perform the Services until you have provided us with copies of
all relevant licences required to be held by you or any Nominee including without limitation,
evidence that from 1 July 2011 you have an Australian Credit Licences (ACL) under the National
Consumer Credit Protection Act (NCCP Act) (or have applied for an ACL by 31 December 2010
and your application has not been refused) or evidence of appointment as a credit representative
of a company which is related body corporate to you which has applied for an ACL by 31
December 2010 (and whose application has not been refused) and dealers licences, investment
advisers licences and finance brokers licences;
1.4
allow a Nominee to submit applications for Products or perform the Services unless they are a
NCCP Compliant Nominee;
1.5
subject to schedule B clause 2.41 become involved (except as authorised by us) in a dispute or
negotiations between us and our customers but where you are involved you must co-operate with
us to the best of your ability should any legal action or claim arise from any claim brought by or
against us in connection with the Services;
1.6
submit applications for Products or perform the Services or allow a Nominee to do so if you or,
where applicable, any Nominee has ceased to be approved by us;
1.7
unless agreed by us, amend any promotional or advertising materials or brochures provided by us
or give any advice or information about a Product which is different from current Product Material
or the Procedures;
1.8
copy or amend any of our Systems (including any software or computer programme), Policies,
Procedures or Product Materials, or allow any third party (including, without limitation, any related
entity) to do so or use them without our written consent;
1.9
submit applications for Products or perform the Services until we authorise you to do so and then
only after you and your employees and Nominees have satisfied and continue to satisfy all of our
initial and ongoing requirements and training (including any training relating to Client
Identification Procedures);
1.10
present multiple loan applications, via electronic lodgement or other means, of any application
initially presented to us for consideration, to any other lender, mortgage provider, or financial
institution, whilst we are in the process of considering the application, except where you have
been advised that the application has been declined, or, where a period of greater than 48 hours
has lapsed from the time you received acknowledgment of that application and no decision has
been provided, or if you, your Nominee or the customer requests that the application be
withdrawn from the Commonwealth Bank;
1 January 2011
1.11
obtain any benefit by way of fees, charges or any other monetary value or obtain any other means
of benefit or incentive from any other party or the potential customer, in relation to referrals
introduced to us, through the CONNECT Cross Sell Program;
1.12
provide any financial product advice or financial service, within the meaning of Chapter 7 of the
Corporations Act 2001, as amended from time to time in respect of a Product in Schedule A - Part
1 - Products;
1.13
disclose or allow your Nominees to disclose, any information that we may provide to you
concerning:
(a)
changes to our products, policies or interest rates;
(b)
sales performance;
(c)
market position; or
(d)
any other matter which is designated, or might reasonably be considered, as commercially
sensitive or confidential,
to any other person, including a parent company or other related entity, unless you have first
obtained our express written permission for the particular disclosure.
Services
1.14
In respect of each application for a Product you must ensure completion (and where necessary
collection) by you as our agent in accordance with our Procedures of: customer identification, Tax
File Number disclosure, Privacy Protection of Information forms and any Bank Account Opening
Application.
1.15
Where we have suffered any claim, liability, damage, loss, cost and expense including, without
limitation, expenses and costs in investigating or managing any matter and legal costs on a
solicitor and own client basis (not based on future or potential earnings) as a result of any
contractual breaches due to delays caused by your or your Nominees errors and/or omissions, we
may offset any such claim, liability, damage, loss, cost and/or expense against any commission or
benefit payable by us to you and we may cease paying you commission or benefits or both until
that commission, benefits or both have been fully offset against that claim, liability, damage, loss,
cost and/or expense.
1.16
You agree to maintain a continuous client relationship including client maintenance and service
and customer retention, addressing general product enquiries on those products offered by us.
1.17
You agree to manage the ongoing relationship with any customers to whom you sell MAV, which
includes keeping in regular contact with these customers to ensure the minimum portfolio balance
requirements are maintained.
1.18
When requested by us, contact and service loan customers whose fixed interest rate periods,
and/or discounted rate periods, are about to expire, to ascertain the customer's intentions
regarding future conduct of their facilities with a view to maximising customer retention. (NB. In
accordance with Schedule B General Obligations clause 2.6, you may only use the information we
provide you to perform the Services on our behalf).
1.19
Prior to the anniversary of each MAV Portfolio Agreement contact and service relevant loan
customers to establish whether the customer will meet the required threshold and the customer's
intentions regarding future conduct of their facilities with a view to maximising customer retention.
(NB. In accordance with Schedule B General Obligations clause 2.6 you may only use any
information we provide you to perform the Services on our behalf).
1 January 2011
1.20
Notwithstanding anything to the contrary in this Agreement, the Services provided by the
Intermediary shall not include the provision of any financial service within the meaning of Chapter
7 of the Corporations Act 2001, as amended from time to time. To avoid doubt, conduct is not the
provision of a financial service if it is done in the course of work ordinarily done by clerks or
cashiers.
1.21
Where you use or rely on a Nominee or contractor to fulfil any obligation or requirement under
this Agreement, and this agreement allows you to do so, that obligation or requirement will be
satisfied where you take reasonable steps to ensure that the Nominee or contractor satisfies that
obligation or requirement. Where you have an obligation or requirement to ensure that a
Nominee does, or refrains from doing, anything, that obligation or requirement will be satisfied if
you take reasonable steps to ensure that the Nominee or contractor does, or refrains from doing,
that thing.
1 January 2011
Part 2:
General Obligations
You must:
2.1
comply with each of the following requirements – where the requirement relates to your Nominee
or contractor you must take reasonable steps to ensure that your Nominee or contractor complies
with the requirement (to the extent that it is relevant).
2.2
ensure your nominees must be:
a) a director or employee of yours; or
b) a credit representative of yours; or
c) a credit licensee; or
d) a director or employee of a corporate credit licensee who which aggregates through you; or
e) a credit representative of another Nominee of yours who is also a credit licensee; or
f) a credit representative of a corporate credit licensee which aggregates through you;
2.3
disclose to any person for whom you or your Nominees act as intermediary or adviser that you or
your Nominees will receive a commission from us and comply with any laws which oblige you to
disclose further details of such commission;
2.4
if you charge, or may charge, a customer a fee for submitting a loan application to us (whether a
brokerage fee or application fee or any other type of fee), also obtain a written acknowledgment
signed by each customer acknowledging that such a fee will, or may be, payable to you by that
customer;
2.5
immediately inform us if you suspect that any customer or Nominee may not be the person they
claim to be, or may be involved in or connected with any criminal, illegal or terrorist activity, or
may intend to use the loan or their position in connection with any such activity or for the
purposes of money laundering or terrorism financing;
2.6
ensure you meet the Data Security Requirements:
2.6.1
Where you hold any information relating to a customer or potential customer which is no
longer necessary for the performance of the Services, you will destroy such information or
return to us as directed.
2.6.2
Despite any other provision of this agreement, nothing prevents you from:
1 January 2011
(a)
using Personal Information which you have collected for your own purposes
provided you have first obtained any necessary consent from, and made any
necessary disclosure to, those customers;
(b)
disclosing information regarding the relationship between you and us and the
income derived under this Agreement to:
(i)
explain the relationship between you and us, to customers and potential
customers;
(ii)
facilitate a sale or proposed sale of the trailing commission, the
Intermediary's business, or shares in the Intermediary, or any similar
activity;
(iii)
abide by the law, an order of the court, or by the binding requirements of
a stock exchange;
(iv)
2.7
disclose to the Intermediary‟s legal or accounting advisers for the
purposes of obtaining advice, or to auditors for audit purposes.
comply with:
(a)
all applicable laws, licences and relevant codes of conduct or practice, (including,
without limitation, the Mortgage Broker Code of Conduct- see Annexure),
applicable to you;
(b)
all our lending policies and Procedures as determined by us from time to time;
and
(c)
all prudent and generally acceptable banking and financial services industry
practices in the performance of the Services; and
(d)
without limiting the above, Do Not Call Register Act 2006 (Cth) and take all
reasonable steps to ensure that your employees and Nominees, comply with that
Act; and
(e)
without limiting the above, Part 6 (Industry codes and Industry standards) of the
Telecommunications Act 1997 (Cth) in relation to telemarketing activities (as that
term is defined in that Act);
2.8
attend and arrange for each Nominee to attend such training as we may require in connection
with the Services, Procedures, Systems and Products from time to time;
2.9
act honestly in your dealings with customers and represent fairly and accurately the terms and
conditions of any Product;
2.10
promote our reputation and our Products, and neither you or any of your Nominees may engage
in any conduct which may adversely affect our good name or business reputation, provided that
this clause does not prevent or restrict you from offering products of our competitors (including
loan, credit card and savings products);
2.11
remain responsible, at your expense, for your Nominees, servants, agents, employees and
contractors whilst carrying out the Services. This includes claims for injuries, loss, damage or
compensation and payment of all taxes (including GST, FBT and PAYE) payable in connection with
your business or employees, or those of any Nominee;
2.12
maintain accurate details including business, mail and email addresses and contact phone
numbers, for all Nominees accredited by us, and immediately advise us of any changes to such
details;
2.13
immediately inform us when a Nominee has resigned or when their employment has been
terminated. You must also inform us if termination of employment of that Nominee was a result of
misconduct or fraudulent activity;
2.14
Immediately inform us when you become aware that a Nominee has ceased to be a NCCP
Compliant Nominee;
2.15
where you have advised us that the Nominee has been dismissed due to misconduct or fraudulent
activity, we will immediately withdraw our approval of that Nominee and suspend subsequent trail
payments in relation to those loans and/or any entitlement to benefits in relation to referrals you
or your Nominees referred to us, that have been identified to contain fraudulent or misleading
information in accordance with Schedule A clause 11.6 of “Terms applicable to payment of all
commissions”. Furthermore, we reserve the right to suspend all subsequent trail payments in
relation to that Nominee‟s total loan portfolio pending investigation of that Nominee‟s loans. We
may also require you to refund to us all commission paid to date, in respect to those loans or
referrals, that have been identified to have contained fraudulent or misleading information;
1 January 2011
2.16
maintain professional indemnity insurance that meets, as a minimum, the following criteria”:
a) The Insurer must be an Authorised Insurer under Section 12 of the Insurance Act 1973 or by
virtue of determinations made by Australia Prudential Regulation Authority (APRA) under
items 4 and 5 of Schedule 2 of the General Insurance Reform Act 2001 or the Insurer must be
Lloyd‟s of London. Please note that where the Insurer is shown as “Lloyd‟s of London and
others” this may not be acceptable as “others” may not be Authorised Insurers as detailed
above, also known as unauthorised foreign insurers.
b) The Insurer must maintain a credit rating, as provided by Standard & Poors, of “A” as an
absolute minimum.
c) The limit and/or sum insured must not be less than:
Total Annual Gross Fundings/Settlements
Minimum Insured Amount
Up to and including $200,000,000
$2,000,000
Greater than $200,000,000
$5,000,000
d) The limit and/or sum insured will be determined by us and we may vary this from time to
time.
e) Where your indemnity insurance policy extends to insure any agents, nominees, sub-agents
and/or consultants such persons and/or companies must be named as an Insured under the
policy.
f)
The indemnity insurance policy must be in a form approved by us.
g) You must provide us with the following documentation within 30 days of our request:
(i)
a copy of your entire indemnity insurance policy - this includes the Wording,
Schedule and any endorsements/alterations attached thereto; and
(ii)
a Certificate of Currency from either the Insurer or the Authorised Underwriting
Agent. A Certificate from any other person, company, agent or broker is not
acceptable;
2.17
maintain membership of an Approved Industry Association and ensure that any Nominee is and
remains a member or associated member of that Approved Industry Association;
2.18
maintain membership of an External Dispute Resolution Scheme (EDRS) approved by the
Australian Securities and Investments Commission (ASIC) and by us (“Approved EDR Scheme”)
and ensure that any Nominee is and remains a member of the Approved EDR Scheme and must
comply with any finding or recommendation made under the Approved EDR Scheme;
2.19
make use of our systems as provided to you from time to time in the performance of the Services,
including electronic means such as "faxstream", CommBroker Site functions, including Loan
Tracking and Electronic Lodgement (COLA) Applications (or any other Home Loan Electronic
Lodgement Application approved by us, if Systems are available for this purpose;
2.20
promptly forward to us all completed applications, associated documents (with your identifying
number inserted) and money received and in any event within 48 hours of receipt;
2.21
ensure all information and material submitted to us is to the best of your knowledge and belief
true, accurate and not misleading in any respect;
1 January 2011
2.22
only submit applications for Equity Unlock for Seniors where the borrowers have been interviewed
by employees or Nominees who meet and maintain standards established by SEQUAL to achieve
accreditation by it as Reverse Mortgage Consultants;
2.23
regularly maintain and audit any internal point of sale software and systems to accurately and
fairly represent our Products and update any product information and interest rates. Any
development or changes to your internal point of sale software and systems, relating to product
information except for Home Loan Application Forms (including electronic platforms) and interest
rate changes, must be carried out within 14 days, or a time frame as agreed by both parties, from
receiving notice, subject to receipt of all required information from us. Such changes are not to be
released prior to any authorised release dates;
2.24
change and audit Home Loan Application Forms (including electronic platforms), and interest rates
to any internal point of sale software and systems, within 24 hours of receiving notice and such
changes and audits must be carried out by the effective date of the interest rate schedule
changes;
2.25
at our discretion, we may provide you with greater than 24 hours notice of any pending changes
in interest rates, however you must not reveal any changes advised to you, to any of your
Nominees or any other person, prior to any authorised release dates. Further, you must not reveal
any information we provide you relating to interest rate, fee, policy or product changes to any
Nominee, or external party, unless authorised by us;
2.26
immediately change and implement any Client Identification Procedures. Changes to application
forms or processes, required to meet legislative or regulatory requirements, will be implemented,
whether by changes to any internal point of sale software and systems or by manual processes
within 7 days or a timeframe as agreed by both parties;
2.27
distribute to all Nominees under this Agreement information received from us (electronically or
otherwise) about our lending policies, Procedures, Mortgage Code of Conduct (see Annexure),
products and services including promotional and other matters;
2.28
when submitting applications, whether electronically or otherwise:
(a)
confirm all legislative requirements have been satisfied;
(b)
observe the Data Security Requirements;
2.29
ensure that no Nominees, servants, agents, employees and contractors will provide any financial
product advice or financial service within the meaning of Chapter 7 of the Corporations Act 2001,
as amended from time to time, on behalf of us pursuant to this agreement;
2.30
co-operate with us in order to allow the appropriate identification, measurement, management
and control of risks of non-compliance by us with the Corporations Act 2001, as amended from
time to time, and any applicable licence conditions;
2.31
co-operate with and observe all compliance processes and procedures agreed with us from time to
time, including Client Identification Procedures and the selection of all Nominees, servants, agents,
employees and contractors who are, or may be involved in providing the Services, the monitoring
of their performance, and the reporting of any compliance failings and breaches;
2.32
ensure Nominees, servants, agents, employees and contractors receive training from us to ensure
that they do not provide any financial product advice or financial service within the meaning of
Chapter 7 of the Corporations Act, as amended from time to time;
2.33
if authorised by us to print a contract or security document, only use a printer that we have
previously approved in writing for this purpose and comply with all Procedures relevant to the
printing, handling and delivery of these documents;
1 January 2011
2.34
ensure the continued observation of the Data Security Requirements by (without limitation):
(a)
installing and maintaining such security measures as are reasonable in the circumstances,
including (without limitation):
(i)
installing and maintaining adequate firewalls and anti-virus measures;
(ii)
downloading security and other relevant updates;
(b)
ensuring that all staff and other persons with access to Personal Information are aware of
and observe all privacy laws;
(c)
continually monitoring all communications from us which incorporate information
concerning data security and, where appropriate, implementing or updating data security
measures.
Accreditation of Nominees
2.35
comply with our procedures for accreditation of Nominees, including:
(a)
being reasonably satisfied that the Nominee will meet and maintain our “Minimum Product
Compliance Requirements” (refer Part 4 Nominees – clauses 4.35 – 4.36);
(b)
arranging for them to sign an Authority to Act;
(c)
carrying out checks to confirm the identity of potential Nominees;
(d)
that they satisfy our requirements in respect of:
(e)
membership of an Approved Industry Association;
(ii)
their professional indemnity insurance cover;
(iii)
membership of an approved EDR Scheme;
(iv)
minimum lending experience;
that they satisfactorily complete our Sales and Process Coach Program (SPC Program)
which includes:
(a)
(i)
attendance to the mandatory Sales and Process Coach workshops;
(ii)
electronic lodgement of a minimum of two (2) Commonwealth Bank Home loans
and have had at least two (2) Commonwealth Bank Home Loans approved, within
three (3) months, or any other period agreed by us, following the Nominee‟s
attendance at the Sales and Process Coach Program Workshop 1;
any other screening requirements as may be specified by us in the Procedures from time
to time;
checking that they are a NCCP Compliant Nominee and providing us with their Registration
or License Number or the Registration Number or License Number of their employer or the
company of which they are a director or the Registration Number or Licence of the person
or entity which has appointed them as a credit representative;
(b)
2.36
(i)
retain originals of all forms which we require Nominees to sign as part of the accreditation
process and copies (either as hardcopy paper or electronic imaged) of all other documents
provided to you by Nominees including proof of their status as NCCP compliant nominees, , or
obtained by you, as part of that process, for at least 6 years after the Nominee ceases to act
as your Nominee and allow us to carry out an inspection or audit of those documents at any
time;
1 January 2011
2.37
carry out our procedures for accreditation of Nominees with due care and skill having regard to
the functions to be performed by any such Nominees under this Agreement;
2.38
not permit your Nominees, whether accredited with us under this agreement or not, to participate
in the Commonwealth Bank Referral Source Program;
2.39
not authorise your Nominees to maintain any other accreditation with the Commonwealth Bank via
any other Intermediary group;
Customer Complaint and Resolution Management
2.40
maintain to our satisfaction a complaint handling procedure and internal dispute resolution scheme
that complies with Australian Standard ISO 10002-2006 (Customer satisfaction – Guidelines for
complaints handling in organizations) or any replacement standard published by Standards
Australia;
2.41
manage any customer complaint made to you, or that we refer to you, where the complaint
concerns or is a result of your or your Nominee's errors, actions or failure to observe our policies
or processes;
2.42
where you have not satisfactorily resolved any complaint, accept liability of any claims and any
actual or potential losses, including any amount paid by us, as a result of your or your Nominee‟s
errors, actions or failure to observe our policies or processes.
2.43
If you fail to properly deal with any complaint that we referred to you under clause 2.41 and it
becomes necessary for us to deal with the complaint, or you fail to properly deal with a complaint
so that a complaint is made to us concerning or resulting from your Nominee's errors, actions or
failure to observe our policies or processes and it is necessary to refer the matter to any other
area of this Bank in order to manage and/or resolve the complaint and/or claim, then we will
suspend payment of any further commission in respect to that loan until the complaint has been
resolved. We may offset our costs (not based on future or potential earnings), of dealing with the
complaint against any commission due to you in respect of that loan;
2.44
In addition to any other of our rights, if as a result of the misconduct of, or breach of this
agreement by you or any of your Nominees:
a)
a court or tribunal orders; or
b)
the Financial Ombudsman Service makes a finding, or
c)
acting reasonably, we reach agreement with a customer to resolve their complaint, or
d)
we have been required to seek further advice or make further investigations,
which has the effect of:
e)
requiring us to make a payment to a customer, or
f)
releasing a customer from a liability to us,
g)
incurring costs for further advice, investigations or other actions required to manage the
matter,
we may require you to pay us the amount of such claim paid by us and any costs or expenses
(including legal costs) or released by us and any costs incurred by us in respect of the complaint.
Ordinarily, any refund due to us will be taken into account by deducting the refund from future
1 January 2011
commission paid to you by us, otherwise it will be payable on 14 days notice from us or a
timeframe as agreed by both parties.
Audit rights and obligations
2.45
We may audit the compliance of you and your Nominees with any and all matters arising from
this agreement upon providing you with 10 days‟ notice of our intention to conduct an audit. If our
audit shows serious irregularities or breaches of this agreement, we may require you and your
Nominees to cooperate with further audits and spot-checks, conducted with or without notice.
2.46
Any auditor we appoint, including any of our employees or authorised representatives to whom we
assign an audit function under clause 2.45 (subject to any relevant duty of confidentiality given),
will be entitled at all times during normal business hours to inspect and make copies of any
records or documents made or held by you or your Nominees that are relevant to:
a.
The performance of the Services;
b.
The Data Security Requirements; or
c.
Any other matter arising under or in connection with this agreement including, without
limitation, your compliance with all relevant legislative provisions and codes of conduct
(including, without limitation, the Broker Code of Conduct annexed to this agreement).
2.47
You and your Nominees must co-operate with the auditor in the performance of their duties and
must provide them with the records and documents they reasonably request and give them such
assistance and explanations which, in the auditor's reasonable opinion, are necessary for the
auditor to perform their duties.
2.48
You must reimburse to us, within 21 days of our request, the costs and expenses charged to us by
any auditor for conducting an audit in accordance with this agreement. With our request, we will
provide a copy of the auditor‟s invoice which you agree shall be sufficient evidence that such costs
and expenses have been charged to us.
Repayment Alert Program (RAP)
2.49
You must actively encourage your Nominees to complete the training programs we arrange in
relation to the RAP and, as we may request, distribute or otherwise make available to your
Nominees any broker-directed information, advertising or communications that we provide to you
concerning the RAP.
2.50
Both you and your authorised Nominees must comply with all of the policies, procedures and
systems we provide to you in relation to the RAP. For the purposes of the RAP, authorised
Nominees are those Nominees who have successfully completed all components of our RAP
training and to whom we have given notice in writing that they may provide RAP services.
Nominees who are not so authorised must not provide RAP services.
2.51
When providing the RAP services, you and your Nominees must only use those forms and
documents that have been provided by us for those purposes.
2.52
From time to time, and with immediate effect, we may amend our policies, procedures, systems,
forms and documents.
2.53
You or your Nominees must not enter into any arrangement on our behalf or hold out or represent
to any person that we have, or will, give our approval to any arrangement unless we have given
you or your Nominee written authority to do so.
2.54
Any recommendation made by you or your Nominees on behalf of a customer must be approved
by us in writing before any steps are taken to implement it.
1 January 2011
2.55
You or your Nominees (as applicable) must maintain clear and complete records of all
communications with a customer, whether or not initiated by you or the Nominee, which concern
the customer‟s payment arrears or their difficulty in meeting their loan obligations.
2.56
If at any time a customer indicates that they would prefer to discuss their payment arrears
situation directly with us, then you or your Nominee:
a) must provide that customer with information as to how they may contact the Commonwealth
Bank‟s Collections & Credit Solutions area;
b) must not make any further contact with that customer with respect to their payment arrears;
and
c) must not engage in any further activity in any way relating to that customer‟s payment arrears
unless we specifically ask you or the Nominee to do so.
2.57
Information provided to you or to your Nominees under the RAP includes Personal Information.
You and your Nominees must ensure that all reasonable precautions and processes are
implemented to protect the information we provide. These precautions include (but are not limited
to) the continued observation of the Data Security Requirements by (without limitation):
a) ensuring that Nominees take all reasonable steps to properly confirm the identity of the
customer(s), before discussing any matter regarding the customer‟s information; and
b) ensuring that all persons with access to Personal Information are aware of and observe all
obligations under the Privacy Act 1998 and the National Privacy Principles.
2.58
In dealing with Personal Information or performing any function of the RAP, you and your
Nominees must comply with:a) all applicable laws, licences and relevant codes of conduct or practice;
b) all of our lending policies, training programs and Procedures as determined by us from time to
time;
c) all prudent and generally acceptable banking and financial services industry practices;
d) all relevant obligations imposed by:
2.59
i.
the Do Not Call Register Act 2006 (Cth);
ii.
Part 6 (Industry codes and Industry standards) of the Telecommunications Act 1997 (Cth)
in relation to telemarketing activities (as that term is defined in that Act); and
iii.
ASIC Regulatory Guide 96: Debt Collection Guidelines.
Where a loan account is in arrears and the loan was written by a broker who is no longer your
Nominee or who is otherwise not available to assist the customer, we may request that you assign
the performance of the RAP services for that customer to another Nominee whom we have
authorised for that purpose.
1 January 2011
Termination of your participation in the Repayment Alert Program (RAP)
2.60
If at any time you breach a condition of the RAP which is a material breach, we may immediately
terminate your participation in the RAP. However, if the breach was caused by a particular
authorised Nominee without your knowledge or participation, only the participation by that
authorised Nominee will be terminated.
2.61
If your participation in the RAP ends or is terminated (by any party and for any reason), you or
your Nominees must not engage in any further activity relating to the RAP or in any other matter
or activity relating to a customer‟s arrears position, other than by referring customers directly to
the Commonwealth Bank‟s Collections & Credit Solutions area.
2.62
If your participation in the RAP ends or is terminated for any reason, you and your Nominees must
promptly return to us (or appropriately destroy, if we request it) all customer information material,
training material, forms, (including brand templates), and all other material and documents
relating to the RAP, including information supplied, received or generated by us in carrying out the
functions of the RAP. Your obligation to keep secure and confidential any customer and Personal
Information retained by you or your Nominees shall continue for such time as required by law,
notwithstanding termination of the RAP.
Diamond subgroup
2.63
We may approve the establishment of a Diamond subgroup comprising certain of your Nominees.
2.64
The continuation of a Diamond subgroup will require you to satisfy our performance criteria on an
ongoing basis. We reserve the right to dissolve the Diamond subgroup entirely if performance
criteria are not being met.
1 January 2011
Part 3:Termination and Suspension of Intermediary Agreement
3.1
Either of us may terminate this arrangement by 14 days notice or a timeframe as agreed by both
parties in writing to the other at any time.
3.2
Subject to clause 3.3, if you are at any time in breach of the terms of this arrangement, we may
terminate this arrangement immediately by notice in writing to you.
3.3
If you are at any time in breach of the terms of this arrangement ("default") and, in our
reasonable opinion the default is capable of being remedied by you, we may give you notice to
rectify the default within 28 days or a timeframe as agreed by both parties of the date of the
notice, or such longer time as we may allow and if you fail to rectify the default to our reasonable
satisfaction within that time, we then will be entitled to terminate this arrangement immediately
by notice in writing to you.
3.4
If we consider to our reasonable satisfaction that the default cannot be remedied within the time
specified in clause 3.3 or at all, we may terminate this arrangement immediately.
3.5
If you dispute our decision whether a default can be remedied pursuant to subclause 3.3, or
cannot be remedied pursuant to clause 3.4, we agree to refer that dispute to an independent
expert agreed between you and us within 14 days of termination of the agreement or a timeframe
as agreed by both parties and in the absence of agreement to be nominated by the president for
the time being of the Law Society of New South Wales. The expert so agreed or nominated shall
act as an umpire and the parties agree that the decision of such expert (as to whether or not the
default was capable of being remedied by you within a period not exceeding 28 days) or a
timeframe as agreed by both parties shall be binding on them. You agree to pay the costs of such
expert.
3.6
If it is of the opinion of the independent expert appointed pursuant to clause 3.5 that the default
cannot be remedied within the time specified in clause 3.3 or at all, we may terminate this
arrangement immediately and cease paying commission at that time.
3.7
For the purpose of clause 3.3 "breach" or "default" does not include breach of the terms of this
arrangement by an individual Nominee where such breach was not known to you or, if known to
you, where you had taken reasonable steps to prevent such breach and, if possible, to rectify the
breach and to prevent further breaches and does not include any matter or event occurring
beyond your reasonable control.
3.8
We may immediately terminate this Agreement if there are reasonable grounds to believe that you
or any Nominee have engaged in fraudulent or dishonest conduct in relation to any application or
referral or in relation to any of the matters covered in this Agreement. We may also terminate this
Agreement immediately if, in carrying out the Services, your actions have caused us to approve an
application we would otherwise not have, or you have placed us in a position of possible loss. We
may immediately terminate this Agreement if there is systemic fraud or systemic dishonesty on the
part of the Intermediary as is reasonably determined by us. In determining if there is systemic
fraud or dishonesty, matters taking into consideration will include (but will not be limited to):
(a) whether we are likely to be subject to any legal action;
(b) whether we may be required to compensate customers because of your actions;
(c) the effect, if any, on our reputation;
(d) whether or not the Intermediary has breached the Agreement in the past;
(e) whether the breach has been rectified by way of compensation or otherwise; and
(f) our rights to recover losses.
1 January 2011
3.9
We may immediately terminate this Agreement if your Registration with ASIC or your ACL is
cancelled by ASIC.
3.10
If this agreement is terminated pursuant to any of clauses 3.2, 3.3, 3.4, 3.6, 3.8, or 3.9, all
entitlements to commission under this agreement shall cease. If the agreement is terminated for
other reasons, after termination we will continue to pay commissions in accordance with this
agreement for loan Products that were funded, accounts that were opened, and products that
were established prior to the date of termination.
3.11
Except as provided in this agreement, when the arrangement ends, all of your rights and authority
under it end, but the ending of our arrangement does not affect either your or our rights or
obligations, which arose before it ends.
3.12
As soon as reasonably possible following termination of this Agreement, you must return to us all
equipment, sales material, customer information material, training material, loan application
forms, promotional signage and material (including brand templates), and all other material and
documents representing us and any other companies in the Commonwealth Bank Group, including
information supplied, received or generated by you in carrying out the Services but you may retain
a copy (either as hardcopy paper or electronic imaged) of any information held by you in relation
to your customers. Your obligation to keep secure and confidential any customer information
retained by you shall continue notwithstanding termination of this Agreement.
3.13
If we have terminated this Agreement under clause 3.8 as a result of us forming the belief that
you have engaged in fraudulent or dishonest conduct, then we may report full details of the
reason for termination, including copies of relevant documents, “after the fact of termination” to
each Approved Industry Association and any government body which regulates or supervises the
conduct of finance brokers.
3.14
We will review the arrangement at least twelve monthly and in addition to our other rights have
the right to terminate this agreement if your average monthly settlements for the previous twelve
months, falls below $5,000,000. Where we have terminated under this clause, the current Trail
Commission structure on the existing loan portfolio will remain subject to terms and conditions
applicable to trail commission and under Schedule B Part 3 – "Termination and Suspension of
Intermediary Agreement".
3.15
Termination of this agreement will automatically terminate any other agreement or registration
under the CONNECT Referral Program.
3.16
Termination of this agreement will automatically terminate any Sponsorship Agreement(s).
3.17
If any other agreement with the Commonwealth Bank is terminated on the grounds that you or
any of your Nominees are suspected to have acted dishonestly or fraudulently this agreement will
also be immediately terminated. Termination of any other agreement with the Commonwealth
Bank, as a result of your or your Nominees actions, may result in termination of this agreement.
3.18
We may review our arrangement and at our absolute discretion, suspend or terminate this
agreement immediately where we have been informed by any Industry Association, or External
Dispute Resolution Scheme or other lender that you or any of your Nominees are suspected to
have acted dishonestly or fraudulently.
1 January 2011
3.19
We may suspend acceptance of new loan applications from you at any time without giving notice,
where we suspect that you have submitted to us loan applications containing fraudulent or
misleading information or we suspect you have engaged in fraudulent or dishonest activity, or had
knowledge of any fraudulent or dishonest activity. Following any such suspension we will give you
notice in writing advising of that suspension.
Any such suspension of you will be for a reasonable period of time to allow us to conduct our
investigations concerning such loan applications or activity.
3.20
At the conclusion of our investigations we will either immediately terminate this agreement, if
entitled to do so or lift the suspension. If we lift the suspension, we are not liable for any losses or
claims you may have incurred, nor are we liable to compensate you for any loss of potential
commission earnings.
3.21
Subject to our electronic Systems being available, we may at our absolute discretion, suspend or
terminate this agreement if the use of electronic Systems (including submission of Electronic
Lodgement Applications) by you and your Nominees falls below our requirements, as determined
by us and notified to you.
1 January 2011
Part 4:
Nominees
If you wish to perform the Services through an employee or sub-agent or contractor you agree:
4.1
in addition to satisfying the accreditation requirements outlined under Part 2: General Obligations
–clause 2.35 that Nominees must satisfactorily complete our Sales and Process Coach Program
(SPC Program) which includes:
(a)
attendance to the mandatory Sales and Process Coach workshops;
(b)
electronic lodgement of a minimum of two (2) Commonwealth Bank Home loans
and having at least two (2) Commonwealth Bank Home Loans approved, within
(3) months, or any other period agreed by us, following the Nominee‟s attendance
at the Sales and Process Coach Program Workshop 1.
4.2
Nominees, whether accredited with us under this agreement or not, are not permitted to
participate in the Commonwealth Bank Referral Source Program.
4.3
under this agreement, Nominees are not be permitted to maintain any other accreditation with the
Commonwealth Bank via any other Intermediary Head Group.
4.4
we may charge a Nominee an accreditation fee for accrediting or reaccrediting a Nominee. We
may withdraw or suspend the accreditation of a Nominee who fails to pay us the accreditation fee
when due. We may vary the amount of the accreditation fee from time to time.
4.5
that only accredited Nominees will personally interview the potential customer and the
Intermediary identifying number of the Nominee who personally interviewed the proposed
customer(s) will be noted on any loan application submitted and supporting documents and on
any CONNECT Customer Referral Form.
4.6
to only perform the Services through Nominees approved in writing by us (in accordance with the
attached Authority to Act) and to maintain an up-to-date register of Nominees.
4.7
to be responsible for ensuring each Nominee complies with all of your duties and obligations and
for the actions taken and advice given by Nominees.
4.8
Nominees shall comply with our lending policies, Procedures and the Mortgage Broker Code of
Conduct (see Annexure).
4.9
Nominees shall utilise our systems in the performance of Services.
4.10
to remain responsible for the remuneration of each Nominee and any applicable tax obligations
that arise in connection with payment of this remuneration.
4.11
not to permit a Nominee to perform the Services until we have notified you that training of the
Nominee and our other requirements have been completed to our satisfaction.
4.12
to ensure each Nominee will not disclose their individual broker number or password to any other
person and ensure that the relevant broker number is attached only to applications and referrals
submitted by that Nominee.
4.13
we may withdraw our approval of a Nominee at any time without giving a reason, upon giving 2
weeks notice to you. Where we suspect that the Nominee has acted dishonestly or fraudulently in
relation to any matter under this agreement, we may withdraw our approval of that Nominee
immediately.
1 January 2011
4.14
You will only perform the services through accredited Nominees who are NCCP Compliant
Nominees and we may immediately withdraw or suspend the accreditation of a Nominee who is
not, or who ceases to be, a NCCP Compliant Nominee.
4.15
we may advise to each Approved Industry Association and any government body which regulates
or supervises the conduct of finance brokers the full details of termination of a Nominee, who has
been terminated by us on the grounds that the Nominee is suspected to have acted dishonestly or
fraudulently, including forwarding to each association and government body copies of any
application or referral, which is suspected to contain fraudulent documentation and/or materially
false information and copies of any other relevant documents.
4.16
we may withdraw our approval of a Nominee with immediate effect where we reasonably suspect
that the Nominee has acted dishonestly or fraudulently in relation to any matter under this
agreement and thereupon we may immediately suspend, for a reasonable period pending
completion of our investigations, trail payments in relation to those loans and/or any entitlement
to benefits in relation to referrals the Nominee referred to us, that we have identified to contain
fraudulent or misleading information. Furthermore, we reserve the right to suspend all trail
payments in relation to that Nominee‟s total loan portfolio for a reasonable period pending
completion of our investigations. We may also require you to refund to us all commission paid to
date, in respect to those loans or referrals that have been identified to have contained fraudulent
or misleading information.
4.17
if any other agreement with the Commonwealth Bank is terminated on the grounds that any of
your Nominees are suspected to have acted dishonestly or fraudulently the Nominee‟s
authorisation will also be immediately terminated.
4.18
at our absolute discretion, we may terminate a Nominee‟s authorisation where we have been
informed by any Industry Body, or External Dispute Resolution Scheme or other lender that the
Nominees is suspected to have acted dishonestly or fraudulently.
4.19
where we have withdrawn our approval of a Nominee you will ensure that the Nominee does not
perform any further Services including performing services via any other accredited Nominee.
4.20
we may refuse to approve a Nominee without giving a reason and we may also impose conditions
on our approval of a Nominee and may vary those conditions and withdraw our approval if the
condition/s is/are not complied with by you or the Nominee.
4.21
Nominees must sight original identification, income and savings documentation, and note copies
with "Originals Sighted", which are also to be dated by the Nominee. Legible copies are to be
retained and are to be made available to us upon request.
4.22
Only NCCP Compliant Nominees may provide credit assistance or act as an intermediary and in
doing so, they must comply with all obligations imposed on them by the NCCP Act.
4.23
that Nominees retain all original supporting information (including any records retained in
accordance with the Client Identification Procedure) as determined by us for a period determined
by us, and have them accessible for audit or any other purpose if requested by us.
4.24
that Nominees make use of electronic means such as “faxstream”, CommBroker Site functions,
including Loan Tracking and Electronic Lodgement (COLA) Applications (or any other Home Loan
Electronic Lodgement Application approved by us), if Systems are available for this purpose.
Subject to our electronic Systems being available, we may at our absolute discretion, suspend or
terminate any Nominee if the use of electronic Systems (including submission of electronic
applications) by that Nominee, falls below our requirements, as determined by us and notified to
the Intermediary.
1 January 2011
4.25
that Nominees maintain professional indemnity insurance that meets, as a minimum, the following
criteria:
a) The Insurer must be an Authorised Insurer under Section 12 of the Insurance Act 1973 or by
virtue of determinations made by Australia Prudential Regulation Authority (APRA) under
items 4 and 5 of Schedule 2 of the General Insurance Reform Act 2001 or the Insurer must be
Lloyd‟s of London. Please note that where the Insurer is shown as “Lloyd‟s of London and
others” this may not be acceptable as “others” may not be Authorised Insurers as detailed
above, also known as unauthorised foreign insurers.
b) The Insurer must maintain a credit rating, as provided by Standard & Poors, of “A” as an
absolute minimum.
c) The limit and/or sum insured must not be less than:
Total Annual Gross Fundings/Settlements
Minimum Insured Amount
Up to an including $30,000,000
$1,000,000
Greater than $30,000,000 up to and
including $200,000,000
$2,000,000
Greater than $200,000,000
$5,000,000
d) The limit and/or sum insured will be determined by us and we may vary this from time to
time.
e) Where your indemnity insurance policy extends to insure any agents, nominees, sub-agents
and/or consultants such persons and/or companies must be named as an Insured under the
policy.
f)
The indemnity insurance policy must be in a form approved by the Bank.
g) You must provide to us
request:
within 30 days or a timeframe as agreed by both parties after
(i)
a copy of your entire indemnity insurance policy - this includes the Wording,
Schedule and any endorsements/alterations attached thereto; and
(ii)
a Certificate of Currency from either the Insurer or the Authorised Underwriting
Agent. A Certificate from any other person, company, agent or broker is not
acceptable;
4.26
that Nominees remain a member or associated member of an Approved Industry Association and
that only Nominees who meet and maintain standards established by SEQUAL to achieve
accreditation by it as Reverse Mortgage Consultants submit applications for Equity Unlock for
Seniors.
4.27
that Nominees remain as members of an External Dispute Resolution Scheme (EDRS) approved by
the Australian Securities and Investments Commission (ASIC) and by us (“Approved EDR
Scheme”) and that Nominees comply with any finding or recommendation made under the
Approved EDR Scheme.
1 January 2011
4.28
that Nominees do not present multiple loan applications, via electronic lodgement or other means,
of any application initially presented to us for consideration, to any other lender, mortgage
provider, or financial institution, whilst we are in the process of considering the application, except
where you have been advised that the application has been declined, or, where a period of greater
than 48 hours has lapsed from the time you received acknowledgment of that application and no
decision has been provided, or if you, your Nominee or the customer requests that the application
be withdrawn from the Commonwealth Bank.
4.29
that Nominees immediately advise us of any changes to their personal and business details,
including business, mail and email addresses, and contact phone numbers.
4.30
that Nominees may only use any information we provide you to perform the Services on our
behalf, in accordance with Schedule B General Obligations clause 2.6.
4.31
to ensure all Nominees are utilising internal point of sale software and systems that accurately and
fairly represent our products and when required, will update any product information and interest
rates.
4.32
to receive and distributed to all Nominees under this agreement information received from us
(electronically or otherwise) about our lending policies, Procedures, products and services
including promotional and other matters.
4.33
that Nominees maintain continuous client relationship including client maintenance and service
and customer retention, addressing general product enquiries on those products offered by us.
4.34
to ensure that Nominees do not provide any financial product advice or financial service, within
the meaning of Chapter 7 of the Corporations Act 2001, as amended from time to time in respect
of a Product in Schedule A - Part 1 – Products.
Nominee Minimum Product Compliance Requirements
4.35
In order for Nominees to maintain an appropriate level of policy skills and knowledge of our
products; in addition to meeting the requirements and criteria under the SPC Program, we require
all Nominees to electronically lodge a minimum of four (4) home loan applications with us and
have at least three (3) loans settled with us, in any given 6 month period. The minimum number
of two (2) Commonwealth Bank approved home loans as referenced in clauses 2.35 (e)- (ii) and
4.1, are included in the total number of four (4) home loan applications required to be lodged in
the first six months period, after the Nominee‟s initial accreditation with the Commonwealth Bank.
4.36
In addition to the criteria outlined in clause 4.35 above, Nominees must also satisfy performance
criteria as set out by us including:
(a)
Electronic lodgement of all loan applications
(b)
Meet Conversion Ratio requirements as set by us
(c)
Meet Submission Quality requirements as set by us
(d)
Arrears Ratio requirements as set by us
4.37
Where the Nominee has failed to meet the criteria outlined in clauses 4.35 and/or 4.36 above, we
may nominate that Nominee to attend a “Re-accreditation” Workshop facilitated by us.
4.38
Notwithstanding clause 4.37 above, we also reserve the right to immediately withdraw our
approval to any Nominee that has failed to meet the criteria outlined in clauses 4.35 and/or 4.36.
4.39
Where a Nominee has been nominated to attend a “Re-accreditation” Workshop and accepts our
nomination to attend, the Nominee will be required to pay a fee in order to receive our formal
confirmation of attendance.
1 January 2011
4.40
Nominees will be scheduled and accepted to attend a “Re-accreditation” workshop only upon
payment to attend being received.
4.41
We reserve the right to withdraw our approval to any Nominee that has been nominated to attend
a “Re-accreditation” Workshop and does not attend, unless non attendance was arranged with
and agreed to by us.
4.42
The cost of attending a “Re-accreditation” workshop will be determined by us. We also reserve the
right vary the cost of attending a “Re-accreditation” workshop from time to time.
4.43
Payments will not be refunded where a Nominee has failed to attend a booked “Re-accreditation”
workshop, without prior notice and approval by us.
4.44
We reserve the right to charge an additional fee for rescheduling attendance to an alternative “Reaccreditation” workshop.
4.45
Where we have suffered any claim, liability, damage, loss, cost and expense including, without
limitation, expenses and costs in investigating or managing any matter and legal costs on a
solicitor and own client basis (not based on future or potential earnings) as a result of any
contractual breaches due to delays caused by you or your Nominees errors and/or omissions, we
may offset any such claim, liability, damage, loss, cost and/or expense against any commission or
benefit payable by us to you and we may cease paying you commission or benefits or both until
that commission, benefits or both have been fully offset against that claim, liability, damage, loss,
cost and/or expense.
4.46
We may nominate a Nominee to attend the Commonwealth Bank “Re-accreditation” Workshops,
where we reasonably consider the errors and/or omissions made by your Nominee, to be
excessive. Where we have nominated a Nominee to attend the Commonwealth Bank “Reaccreditation” Workshops, due to excessive errors and/or omissions, clauses 4.37 – 4.39 above
apply.
4.47
We may suspend our accreditation of a Nominee at any time without giving you or the Nominee
notice, where loans applications have been submitted to us by that Nominee containing fraudulent
or misleading information or we suspect the Nominee has participated in fraudulent or dishonest
activity, or had knowledge of any fraudulent or dishonest activity. Following any such suspension
we will give notice in writing to you advising of that suspension. Any such suspension of a
Nominee will be for a reasonable period of time to allow us to conduct our investigations.
4.48
Our decision to suspend a Nominee will not affect your entitlement to commissions except, as
provided elsewhere in this Agreement, we may suspend payment of all or part of those
commission for a reasonable period pending completion of our investigations.
4.49
Upon any decision to suspend a Nominee we reserve the right to suspend for a reasonable period
pending completion of our investigations payment of commission on those loans that we consider
contain fraudulent documentation and/or materially false information and to suspend entitlement
to any entitlement to benefits on those referrals the Nominee referred to us, that we consider
contain fraudulent documentation and/or materially false information.
4.50
Furthermore we may suspend for a reasonable period pending completion of our investigations
payment of all commission if we consider any Nominee have breached this agreement or have
acted negligently.
4.51
At the conclusion of our investigations we will either immediately withdraw our approval of the
Nominee pursuant to Schedule B clause 4.13 or lift the suspension. Even if we lift the suspension,
we may withdraw our approval of the Nominee.
1 January 2011
4.52
At the conclusion of our investigations, we may, at our absolute discretion, resume commission
including payment of suspended commission on those loans we may have reviewed and identified
to be in order. If we lift the suspension, we are not liable for any losses or claims you or the
Nominee may have incurred, nor are we liable to compensate you or the Nominee for any loss of
potential commission earnings.
4.53
We may charge a Nominee an accreditation fee for accrediting or reaccrediting a Nominee
(including a Nominee who was accredited by us for another Intermediary).
4.54
We may withdraw or suspend the accreditation of a Nominee who fails to pay us, in accordance
with our specified method of payment the accreditation fee when due.
4.55
We may vary the amount of the accreditation fee from time to time.
CONNECT Referral Program
4.56
Your Nominee must be registered with us to participate in the CONNECT Referral Program.
4.57
Only those Nominees specifically registered with the CONNECT Referral Program may participate in
this Program.
4.58
You and/or your Nominees are only entitled to any benefits in relation to this Program when:
(a)
the correct “broker identifying" number is provided;
(b)
the person you or your Nominees have referred to us accepts the products (as outlined
under Schedule A - Part 1 – Products - CONNECT Referral Program) referred and those
products are established.
4.59
You and/or any of your Nominees will not be entitled to any commission, if the referral for a
particular customer was made first by any other area of the Bank.
4.60
Commission for each of the above products will be paid monthly, or such shorter period
determined by us, following establishment of the products. Payments will be made currently within
the appropriate scheduled fortnightly commission payment and will be included within the single
payment amount.
4.61
In addition to our other rights to vary Products and the Services, we may also change benefits,
payments and commission, by giving 14 days notice in writing to you or a timeframe as agreed by
both parties.
4.62
You and/or any of your Nominees must not obtain any benefit by way of fees, charges or any
other monetary value or obtain any other means of benefit or incentive from any other party or
the potential customer, in relation to referrals introduced to us, through the CONNECT Referral
Program.
4.63
You and/or any of your Nominees must not provide any financial product advice or financial
service, within the meaning of Chapter 7 of the Corporations Act 2001, as amended from time to
time in respect of a Product.
1 January 2011
Nominees and the Repayment Alert Program (RAP)
4.64
Nominees must successfully complete all components of our RAP training before they are eligible
to participate in the RAP. We will advise eligible Nominees in writing when they are authorised to
provide RAP services.
4.65
Nominees whom we have authorised to provide RAP services will be bound by the terms and
conditions of the RAP with respect to their acts or omissions during the period they are so
authorised.
4.66
Only a Nominee who is personally authorised by us to provide RAP services may interview a
customer concerning RAP-related issues. A Nominee who is not authorised to provide RAP services
must refer our loan customers who wish to discuss loan repayment difficulties and potential
alternative repayment arrangements to the Commonwealth Bank‟s Collections & Credit Solutions
area.
4.67
Nominees must comply with the policies, procedures and systems that we provide to you or them
for the performance of the RAP. From time to time, and with immediate effect, we may amend
those policies, procedures and systems.
4.68
A Nominee must not:
a. use or disclose the information provided to them under the RAP for any other purpose
than to perform the services required by the RAP, unless the Nominee has requested and
received our express, written consent for the use or disclosure;
b. enter into any contractual arrangements with a customer on our behalf, whether in
relation to the RAP or otherwise, or hold out or represent to any person that we have, or
will, give our approval to any arrangement or recommendation unless we have given the
Nominee written authority to do so; or
c.
4.69
make any further contact with the customer with respect to their payment arrears once
the customer has requested to directly manage their arrears with us, unless we specifically
request them to do so.
When contacting customers identified through the RAP, Nominees must:
a. make reasonable efforts to contact the relevant customer(s) within 2 business days (or
any other timeframe determined by us);
b. take reasonable steps to confirm the identity of the customer(s) before discussing any
matter involving the customers‟ Personal Information, including their loan information;
c.
follow the scripting we provide;
d. maintain clear and complete records of their interactions with customers;
e. provide the Commonwealth Bank‟s Collections & Credit Solutions area with an update of
the conversation with the customer as soon as practicable following the conversation;
f.
promptly communicate, directly to the respective customer(s), all instructions or decisions
which we may advise; and
g. where the customer asks to deal directly with us about their payment arrears, provide
information as to how the customer may contact the Commonwealth Bank‟s Collections &
Credit Solutions area.
1 January 2011
4.70
In addition, when providing services under the RAP a Nominee must:
a. only use the forms and documents that we provide for the purposes of the RAP;
b. comply with all applicable laws, licences and relevant codes of conduct or practice,
including without limitation the relevant obligations imposed by the Do Not Call Register
Act 2006 (Cth), Part 6 (Industry codes and Industry standards) of the Telecommunications
Act 1997 (Cth) in relation to telemarketing activities, and by the ASIC Regulatory Guide
96: Debt Collection Guidelines; and
c.
4.71
ensure that all reasonable precautions are implemented to protect the Personal
Information that the Bank provides under the RAP, including through observing the Data
Security Requirements.
We may:
a. immediately revoke a Nominee‟s authority to participate in the RAP if the Nominee
breaches any term or condition of the RAP; or
b. where we consider a breach of the RAP terms and conditions to involve serious
misconduct, misrepresentations to us or to a customer, dishonesty, fraud, or gross
negligence by a Nominee, or a repeated failure to comply with our requirements,
terminate that Nominee‟s Authority to Act.
4.72
A Nominee may end their participation in the RAP, and terminate their authorisation to provide
RAP services, by giving us two (2) weeks‟ notice in writing.
4.73
As soon as practicable after we or a Nominee terminate the Nominee‟s participation in the RAP or
their Authority to Act, the Nominee must return to us, or appropriately destroy if we so request, all
customer information material, training material, forms, (including brand templates), and all other
material and documents relating to the RAP, including information supplied, received or generated
by us in carrying out the RAP services.
4.74
A Nominee is obliged to keep secure and confidential any Personal Information they may retain
notwithstanding the termination of this Agreement or the termination of their participation in the
RAP.
Diamond subgroup
4.75
A Nominee‟s continuing eligibility for membership in a Diamond subgroup will require the
Nominee‟s ongoing satisfaction of our performance criteria. In addition, we reserve the right to
cancel any Nominee‟s participation in a Diamond subgroup or to dissolve a Diamond subgroup
entirely.
4.76
Nominees participating in the Diamond subgroup remain bound by the provisions of this
Agreement.
1 January 2011
Part 5:
5.1
General
Except as provided in this clause 5.1, you may not assign the benefit of this agreement outside
the Intermediary Group without our consent, such consent not to be unreasonably withheld. You
may assign your rights without our consent as follows:
a) to a Related Body Corporate;
b) in relation to the income stream under this Agreement, to a financier for the purposes of
financial accommodation.
5.2
If two or more of you have been named as intermediary your obligations to us are joint and
several.
5.3
Our arrangement is one of principal and agent only in respect of you acting in accordance with
Schedule B clause 1.14 and is not to be construed as implying you are our agent in respect of any
other part of this agreement.
5.4
We may offset against payments due to you any amount which you owe to us (whether under this
agreement or otherwise).
5.5
Our arrangements are governed by New South Wales law and you submit to the non-exclusive
jurisdiction of the courts of New South Wales.
5.6
Changes to the rate of upfront or trail commission advised and payable under this notice of
variation will not affect the existing rates of commission payable in respect of loans funded prior to
the change in commission advised in this notice of variation.
5.7
You do not acquire any rights of ownership in or use of the Product or any associated name, logo
or trademark except a licence to use it in order to perform the Services. You are also not to:
(a) associate name, logo or trademark with any other name, logo or trademark, without our
written authority to do so;
(b) use name, logo or trademark for any other purpose other than those specifically
authorised by us.
5.8
Customers originated for us by you remain customers of ours for the Product.
5.9
Except as disclosed in writing to us, you confirm that you do not enter this agreement as trustee
of any trust.
5.10
You must advise us in writing, of any changes in your company directorship, shareholdings or of
any other significant company structure changes.
5.11
Nothing in this agreement prevents you from marketing to potential customers, products or
services of other financial institutions, whether or not those products or services are offered in
competition to our Products or in competition to other products or services offered by us.
5.12
We have the right to vary these Terms and Conditions from time to time on written notice to you.
You are bound by those changes once you have received written notification of such changes.
5.13
You acknowledge that we will rely on your performance of your obligations under this Agreement
to meet our legal obligations under various statutes, regulations, rules and other legislative and
administrative instruments.
1 January 2011
5.14
You warrant to us that all information we require you to provide about you and your Nominees,
including information which reasonably indicates that a person is lawfully entitled to engage in a
credit activity (as that term is defined in the NCCP Act), is accurate, complete and not misleading
in any respect. You agree to immediately notify us in writing when you become aware of any
material change to the information about you or your Nominees that we have previously required
you to provide including, without limitation, where a person‟s ACL or authorisation as a credit
representative by a particular credit licensee has been revoked or has otherwise ended, or where a
person has ceased to be an employee or a director of a particular credit licensee.
5.15
You agree to indemnify us against any liability or loss, expenses (including without limitation
expenses and costs we incur in investigating or managing any matter), damages, claims and
costs (including without limitation legal costs on a solicitor and own client basis) sustained or
incurred, arising directly or indirectly in connection with:
1. any breach by you or a Nominee of any provision of this Agreement;
2. any act, omission or default (whether negligent or otherwise) of you or a Nominee;
3. the enforcement by us of this Agreement; and
4. any action by you or a Nominee which directly or indirectly causes a customer or potential
customer to incur any liability, loss, expense, damage or costs which we in our absolute
discretion reimburse to such person,
provided that this indemnity shall not include any liability or loss, expenses, damages, actions,
claims or costs directly caused by any wilful or negligent act or omission by us or any of our
officers, employees or agents. Any claim arising under this indemnity or otherwise under this
agreement is not an apportionable claim for the purposes of the Civil Liability Act 2002 (NSW), and
any liability you have to us under this clause or otherwise under this agreement (whether in
contract, tort, in equity or otherwise) for any loss or damage is not to be reduced because any act
or omission by us or any of our officers, employees or agents may have contributed to the
relevant loss or damage.
5.16
You agree that we may offset any losses, penalties, claims, costs and/or expenses that we are
entitled to be indemnified against pursuant to clause 5.15 against any commission or benefit
payable by us to you, and that we may cease paying you commission and/or benefits until that
commission and/or benefits have been fully offset against such loss, penalties, claims, costs
and/or expenses.
5.17
In accordance with the tax system:
a. We can issue tax invoices in respect of supplies;
b. You will not issue tax invoices in respect of the supplies;
c. You acknowledge that you are registered for GST when you enter into the agreement and
that you will notify us if you cease to be registered;
d. we acknowledge that we are registered when we enter into the agreement and that we
will notify you if we cease to be registered for GST or if we cease to satisfy any of the
requirements of the determination (GSTR 2000/10);
e. We must not issue a document that would otherwise be a recipient created tax invoice on
or after the date when we or you have failed to comply with any of the requirements of
the determination.
1 January 2011
5.18
Any notices of variation to this agreement or any other notice that is required to be in writing
under this agreement may be given by electronic means. If we are giving notice to you, we may
send the notice to the email address you have nominated to us. If you have not nominated an
email address for the receipt of notices, we may require you to provide one.
5.19
You are bound by this agreement once you have received it.
1 January 2011
Part 6:
Definitions
Terms which have been capitalised have the meanings set out below:6.1
“ACL”
Means an Australian Credit Licence under the NCCP Act.
6.2
“ASIC”
Means Australian Securities and Investments Commission.
6.3
"Broker Number"
Means the unique Intermediary Identification number allocated to
each accredited Nominee.
6.4
"Approved Industry Association"
Means Mortgage and Finance Association of Australia,
Finance Brokers Association of Australia Limited and any other
industry association approved by us that has an acceptable code
of conduct, disciplinary procedures, internal dispute resolution
procedures and education, training and accreditation programmes
that includes National Credit Code accreditation.
6.5
“Balance Outstanding”
Equals the net balance of the home loan account (including any
additional advances) as at the end of each month, less, the credit
balance as at the end of each month (being the same month) of
any Mortgage Interest Savings Account (MISA) which is attached
to the home loan on which trail is being paid.
6.6
“Benefits”
Means commissions paid or other reward incentives.
6.7
“CommBroker”
Means the Commonwealth Bank Mortgage Broker Site that
provides accredited mortgage brokers with product information,
credit policy, forms, calculators and enables brokers to lodge and
track home loan applications, as well allows Intermediary‟s to
obtain commission data and view commission statements.
6.8
“Client Identification Procedure ” Means a procedure established by us and communicated
to you from time to time for the collection and verification of
client information in compliance with applicable laws.
“CONNECT Referral
Means the scheme called “CONNECT” pursuant to which
6.9
Program" or "Program"
certain commissions are offered or made available from
time to time as a result of any successful sale for Products that
have been referred to us, from you (being a registered and
accredited Intermediary or Nominee).
6.10
“Clawback”
Means a refund of commission already paid to you, that you are
required to pay back to the Commonwealth Bank.
6.11
"Data Security
Requirements"
Means your obligations to keep all information relating to our
business and customers including the Personal Information of
applicants and customers and the contents of our agreement with
you is kept secure and confidential and is not:
1 January 2011
(a)
Disclosed to any person without our prior written consent
or except as required or permitted by law; and
(b)
Used for any purposes other than you performing the
Services on our behalf.
6.12
“Electronic Lodgement Application” Means an application for a product which is completed via
the internet using the electronic portal in the Third Party Banking
Channel or any other electronic portal we have approved.
6.13
"Intermediary"
Means the person(s) named in the covering letter.
6.14
“Intermediary Group”
Means you and any Related Body Corporate of yours.
6.15
“MISA”
Commonwealth Bank‟s Mortgage Interest Saver Account (MISA) is
a product that is linked to a home loan. MISA is not available on
Rate Saver Home and Investment Home Loans and Lines of
Credit.
6.16
“NCCP Compliant
Means a Nominee who is:
Nominee”
(a)
registered with ASIC and applied for an ACL or holds an
ACL; or
(b)
appointed a credit representative of yours or of a person
or company which is registered with ASIC and applied for
an ACL or holds an ACL and on whose behalf the
Nominee acts in the carrying on of credit activities in
accordance with this Agreement; or
(c)
a director or employee of a company which is:
(i)
registered with ASIC and applied for an ACL or
holds an ACL; or
(ii)
a related body corporate of a company which is
registered with ASIC and applied for an ACL, or
holds an ACL;
(iii)
a credit representative of a person or company
which is registered with ASIC and applied for an
ACL or holds an ACL and on whose behalf the
Nominee acts in the carrying on of credit
activities in accordance with this Agreement.
For the avoidance of doubt, a Nominee may only be appointed as a credit representative of a
person or company (other than yourself) who is approved by you to carry on of credit activities in
accordance with this Agreement.
6.17
“NCCP Act”
Means the National Consumer Credit Protection Act.
6.18
“NCCP Transitional Act”
Means the National Consumer Credit Protection (Transitional and
Consequential Provisions) Act.
6.19
"Nominee"
Means any person nominated by the Intermediary as a nominee,
employee, agent or sub-agent of the Intermediary, approved in
writing by us and who has agreed in writing to be bound by these
terms and conditions. Where the context permits, “Nominee” also
includes any employee, agent or sub-agent of the nominee.
1 January 2011
6.20
"Personal Information"
Has the same meaning as in the Privacy Act 1988 (Cwth).
6.21
“Personally interview”
Means a "face to face" interview between the applicants and the
Nominee for the purpose of obtaining and recording information
to complete and submit an application with the applicants, for
those products outlined in Schedule A – Part 1. Whilst "face to
face" interviews will normally occur, it is acceptable for an
interview to be conducted by telephone due to the remoteness or
special circumstances of the applicant. Identification requirements
pursuant to Schedule B - Part 1 - Scope of Authority and Services
- clause 1.14 and documentation requirements pursuant to
Schedule A - Part 2- Categories of Services - clause 2.4 and
Schedule B - Part 4 Nominees - clause 4.21 must still be adhered
to in order to meet AML/CTF requirements. In the event a face to
face interview is not reasonably possible (e.g. due to remote
locations), a Commonwealth Bank Officer is to identify the
customer.
6.22
"Procedures"
Means the procedures advised by us in writing to you from time
to time, including Client Identification Procedures.
6.23
"Product"
Means a product of ours listed in Schedule A which you are
authorised to sell as updated by notice in writing by us to you
from time to time.
6.24
"Product Materials"
Means that material in written or electronic format provided to
you in connection with a Product.
6.25
“Product Switch”
Means changes in the home loan product type.
6.26
“Re-accreditation” Workshop Means the Commonwealth Bank program, specifically designed
to reacquaint accredited Nominees that have not met the criteria
set out under Part 4: Nominees – Nominee Minimum Product
Compliance Requirements - clauses 4.35 and 4.36, with the
Commonwealth Bank Home Loan Products, Policies, Process and
Unique Selling propositions. The program ensures Nominees
maintain the minimum product and process requirements, in
order to discuss Commonwealth Bank Home Loan Products with
potential and existing customers.
6.27
“Registered with ASIC”
Means registered under the NCCP Transitional Act.
6.28
“Registered”
Means any person authorised by us to participate in the
Commonwealth Bank “CONNECT” Referral Program and who has
agreed in writing to be bound by these terms and conditions.
6.29
“Registration Number”
Means the unique number allocated by ASIC to a person or
company under the NCCP Transitional Act or the NCCP Act when
that person or company becomes registered with ASIC or is
issued with an ACL or ASIC is notified of their appointment as a
credit representative.
1 January 2011
6.30 “Related Body Corporate”
Means a company which is related to you (or the other company)
in one of the following relationships:
(a)
A holding company of you (or the other company);
(b)
A subsidiary of yours (or the other company‟s); or
(c)
A subsidiary of the same holding company as of you (or
the other company).
6.31
“Repayment Alert Program” (RAP) A program designed to provide early customer payment
default data to Nominees to enable them to assist their clients in
managing their financial commitments to us.
6.32
“Sales and Process Coach” (SPC) Means the mandatory Commonwealth Bank coaching
program, specifically designed to acquaint new accredited
Nominees to the Commonwealth Bank Home Loan Products,
Policies, Process and Unique Selling propositions. The program
equips Nominees with the minimum product and process
requirements, in order to discuss Commonwealth Bank Home Loan
Products with potential and existing customers. This is a three (3)
month “program” that consists of two (2) compulsory workshops
within the first six (6) weeks of the program. Nominees are also
required to have lodged (electronically) and have had funded a
minimum of two (2) home loans within the three (3) month
program.
6.33
"Services"
Means the services listed or referred to in clauses 2.1 to 2.6. 2.8
and 2.9 of Schedule A and clauses 1.14 to 1.21 of Schedule B as
updated by us in writing to you from time to time.
6.34
"Systems"
Means the management information, banking and other systems
(electronic or otherwise) which we own or employ in connection
with the Services.
6.35
“Third Party Banking
Means the internet or electronic portal, facsimile numbers and
Channel”
postal addresses advised to you from time to time through which
applications for loans and other products are to be submitted to
us under this Agreement.
6.36
"Top Up"
Means an increase in the loan amount or credit limit of existing
loan or facility by way of any “New Money”.
6.37
"Total Upfront Amount"
For all Home Loans other than “Lines of Credit”, means the total
amount calculated on “New Money” using the Base Upfront Rate
plus Submission Quality Allowance payable (if applicable), plus
Conversion Allowance payable (if applicable). For Lines of Credit,
the “Total Upfront Amount” is based on 75% on “New Money”
credit limit, plus Submission Quality Allowance payable (if
applicable), plus Conversion Allowance payable (if applicable).
6.38
"we", "us" and "our"
Is a reference to Commonwealth Bank
(ABN 48 123 123 124) its successors and assigns.
6.39
"you"
Means
1 January 2011
the
person(s)
named
in
the
of
covering
Australia
letter.
Annexure
Mortgage Broker Code of Conduct
We are committed to the highest standards of ethical behaviour at all times.
The Commonwealth Bank‟s Code of Conduct clarifies the standards of
behaviour that are expected of our accredited mortgage brokers in the
performance of their duties. It gives guidance in areas where mortgage
brokers need to make personal and ethical decisions.
1.
I will always act in a consistent, honest and ethical manner, using fair and reasonable judgement
in my actions. I will ensure that customers are fully aware of all interest rates and fees applicable
to their loan.
2.
I will always obtain a good understanding of the customer‟s financial position, sufficient for me to
be comfortable that products I recommend meet their financial needs and situation.
3.
I will always discuss with my customers the importance of protecting themselves, their income and
their assets.
4.
I will personally interview and identify (under AML/CTF requirements) all customers including
those introduced to me via any referral source.
5.
I will adhere to the Bank‟s instructions, processes and policies and will not in any way exceed my
authority. I will not allow any other party to utilise my unique Commonwealth Bank Broker ID
number and/or my mortgage broker website password. I will ensure all my business meets all
legal and regulatory requirements.
6.
I will ensure my personal or commercial interests or benefits do not influence or prejudice my
recommendations and obligations to the customer.
7.
I will report any suspected fraud, error, breach of law or concealed practice and I understand
misleading, dishonest, deceptive or fraudulent activity is unacceptable.
8.
I will maintain membership of a „professional industry body‟ approved by the Commonwealth Bank
that has an acceptable accreditation process and has an acceptable Education and Training
Programme that supports compliance with legislative requirements.
9.
I will personally manage all customer complaints regarding my advice and actions. I will
endeavour to achieve a 48-hour resolution. When 48 hours is not feasible I will ensure customers
are kept informed on a regular basis. In every case where a customer‟s complaint directly
concerns a policy, procedure or product feature established by the Bank, I will promptly
communicate the details of that complaint to the Bank through the appropriate channel. I will
work cooperatively with the Bank to manage each such customer complaint to achieve a resolution
satisfactory to the customer and to the Bank.
10.
I will undertake all training and development requirements required to maintain any registration or
licence required by law and Commonwealth Bank accreditation and will attend any other training
programme/s required by the Commonwealth Bank.
1 January 2011
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