1 – Introduction
This terms of business agreement (“TOBA”) is between you and Marnix Europe Limited (we, us, our) whose registered office is at 95 Gresham Street, London, United Kingdom, EC2V 7AB.
1.1 – Scope and Application
The purpose of this TOBA is to detail the professional services we will provide to you and the basis on which we will do so. This TOBA takes effect on receipt and supersedes any previous terms of business agreement you may have received from us.
Please read this TOBA carefully. In particular, we draw your attention to the following sections:
- Section 1.4 (Insurer Selection)
- Section 2.2 (Duty of Fair Presentation)
- Section 2.6 (Claims Notifications)
- Section 3 (Remuneration)
- Section 4 (Client Money)
- Section 10 (Limitation of Liability)
You need to contact us immediately if there is anything in this document that you do not agree with or do not understand as instructing us to arrange, renew or otherwise act for you in connection with your insurance arrangements will be taken as your acceptance of this TOBA.
References to insurance or insurers in this TOBA include reinsurance and reinsurers.
1.2 – About Us
We are an independent insurance intermediary and Lloyd’s insurance broker (Lloyd’s registration number 1963 MRX) and are authorised and regulated by the Financial Conduct Authority (“FCA”) with FCA firm reference number 307341. Please visit the FCA website (www.register.fca.org.uk) or contact the FCA on 0800 111 6768 for further information.
We are registered in England and Wales with Company Number 2448482.
1.3 – Our Services
As an independent insurance intermediary, we generally act as your agent, as our client, when providing services to you. As such, we are subject to the law of agency, which imposes various duties on us. However, in certain circumstances we may act for and owe a duty of care to other parties, which could include another client or an insurer. Please see Section 4 (Client Money) for further information on how client money will be held when we act as your agent or agent of the insurer.
If we become aware of any situation which gives rise to an actual or potential conflict of interest, we will inform you of the situation and the options available to you and obtain your consent before we carry out your instructions. We will also make you aware if our own interests’ conflict with any duty we owe to you.
In some cases, we act for insurers and can enter into insurance policies and/or handle or settle claims on their behalf. Where we act on behalf of the insurer and not you, we will notify you accordingly; in relation to claims we will advise you of this fact when you notify us of a claim.
Our services include:
- advising you on your insurance needs;
- arranging suitable insurance cover with insurers to meet your requirements;
- helping you with any subsequent changes to your insurance you wish to make; and
- providing all reasonable assistance with any claim you have to make.
We may agree to provide additional services to you from time to time. Such additional services will be subject to a separate agreement and subject to additional fees which will be agreed with you in advance.
1.4 – Insurer selection
As an independent insurance intermediary, we offer a wide range of insurance products and have access to many leading insurers and the Lloyd’s market. For certain types of insurance, however, we may offer the product of only one insurer. We will advise you separately as to the market exercise that we have undertaken which will be one of the following:
- a single insurer;
- a limited range of insurers (we will inform you of the insurers approached in this scenario); or
- a range of insurers (having conducted a fair analysis of the market).
We operate lineslip facilities in relation to certain classes of business. Under a lineslip, risks which meet a certain pre-agreed criteria can be bound by one or more insurers on behalf of a wider range of insurers. We review the terms and conditions of lineslip facilities annually to ensure that the terms and conditions offered by participating insurers are competitive. Where we place a risk for you under a lineslip or similar facility, we will disclose this fact to you.
Whilst we make every effort to place your insurances with insurers that are financially sound, we do not guarantee or otherwise warrant the solvency of any insurer we place your insurances with and we do not accept any responsibility if any insurer is unable for whatever reason to meet its obligations to you.
If you have any concerns regarding any insurer chosen to meet your insurance requirements you should inform us as soon as possible and we will discuss them with you. Your liability for the premium, whether in full or pro rata, may still arise under policies where a participating insurer becomes insolvent.
1.5 – Advice
We will advise and make a recommendation for you after we have assessed your needs. This will include the type of cover you require, together with the costs. Upon receipt of your instructions we will negotiate and seek to secure competitive indications and quotations of insurance with insurers and will keep you informed of the progress of our negotiations. We will advise you, as soon as reasonably possible, of any inability to place your insurance in line with your requirements.
Prior to the conclusion of the contract you will be given a statement of demands and needs. You should read this carefully. It will set out your demands and needs and confirm whether the contract has been personally recommended and, if so, the reasons for making that recommendation.
1.6 – Policy Documentation
Once your insurance is placed, we will provide you with written confirmation and will endeavour to provide you with your policy documentation within thirty (30) days of the contract of insurance being concluded. Your policy documentation may take the form of an insurance policy, certificate of insurance or an insurer or broker produced insurance document. Your policy documentation will confirm the basis of your cover, give details of the insurers, and be accompanied by a policy summary.
It is your responsibility to check your policy documentation in respect of each insurance policy and to satisfy yourself that it is entirely in accordance with your requirements and instructions. You should advise us immediately if the policy documents do not meet your requirements, are incorrect or if you do not understand them. Otherwise, we will assume that the policy documentation and insurance policy satisfy your requirements.
Please keep your policy documentation safe.
1.7 – Renewals / Mid-term Adjustments
You will be provided with renewal terms in a durable medium in good time before expiry of your insurance policy to enable you to make an informed decision on whether to renew your policy or to provide notice to us that you will not be renewing your policy. Attached to the renewal terms will be a statement of any changes to the terms of the policy, and changes to directive-required information (information required under the EU Directives), statement of price and information about cancellation.
You will be given an explanation of any changes, where necessary and in good time, which may appear in your policy and you will be advised of your right to request a new policy statement if renewal is not being offered, you will be notified in good time before the expiry of the policy.
Any mid-term adjustments to your insurance policy must be requested in writing. We will seek the necessary agreement from insurers and confirm to you in writing when the amendment has been effected, or of any inability to effect the required amendment or material change.
If insurers agree to the amendment, you will receive an addendum or endorsement to your existing policy documentation, together with a debit note or credit note, showing any additional or return premium due. Any return premium due will be credited to you net of our brokerage commission (if applicable) and there will be no adjustments to our fees.
Any mid-term changes to your policy will be provided in good time, and in line with the terms and conditions of your insurance policy, prior to the change taking effect.
Please note that you must comply with your duty of disclosure, as described in more detail in Section 2.2 (Duty of Fair Presentation), both on informing us of any proposed mid-term changes and when renewing your insurance policy.
2 – Your Duties
2.1 – Provision of information
You must provide us with the all necessary information relating to your insurance needs so that we can understand your requirements and appropriately advise you. If required to do so, you must accurately complete any proposal form, questionnaire or equivalent document.
2.2 – Duty of Fair Presentation
You must be sure that the information you have given to us to pass onto the insurers is a “fair presentation” of the risk. This means that you must have clearly disclosed every material circumstance which you, your senior management, or persons responsible for arranging your insurance knows or ought to know following a reasonable search, or failing that, sufficient material to put a prudent insurer on notice that it needs to make further enquiries for the purpose of revealing those material circumstances. In addition, you have a duty to disclose information in a reasonably clear and accessible manner.
A material circumstance is one which may influence an insurers’ judgement over whether to take the risk, and if so, on what terms. If you are in doubt as to whether a circumstance is material, then you should disclose it.
This duty applies before your cover is placed, when it is renewed and at any time that it is varied. Your policy wording may also include a condition that this duty continues for the duration of the policy. Furthermore, you must inform us if any of the information provided to us has changed or you become aware of further material information. You must tell us about any such changes before we arrange cover or make any alteration to your insurance.
Please note that failure to disclose a material circumstance may entitle an insurer to impose different terms on your cover or proportionately reduce the amount of any claim payable. In some cases, your policy could be avoided from inception which would mean that a claim would not be paid.
You should contact us immediately if it comes to your attention that you may not have disclosed full and accurate information or if material information was omitted.
2.3 – Warranties and Subjectivities
Any insurance we arrange for you may contain warranties. As such, please familiarise yourself with the terms and conditions of your policy and ensure that you strictly adhere to them, especially any warranties, as a failure to do so could result in your policy being cancelled or claims not being paid. If you identify a breach, you should remedy it as soon as possible and keep a record of what actions you take and when.
Your insurance may separately be subject to certain requirements being fulfilled, known as a subjectivity. Any subjectivities should be satisfied as soon as possible to ensure that your insurance is valid.
2.4 – Payment of Premium
We will issue you with an invoice or premium debit note once we have completed your insurance arrangements. It is important that you pay your insurance premium within the timeframe specified on the invoice or premium debit note you receive, or within 30 days of receipt if no payment date is referenced. If you do not pay on time, your insurance contract may not be valid, or your insurance contract may be cancelled in accordance with any cancellation clause in the policy. Payment should be made to the account details specified in and the currency indicated on your invoice/debit note.
We are not under any obligation to settle the premium to insurers on your behalf by the payment date until we have received cleared funds from you on the relevant due date.
Any insurance premium tax, duty or other charge which is payable in addition to your premium will be specified on the invoice/premium debit note you receive. If any deduction is allowable by you in respect of such tax, duty or other charge, you should ensure it is remitted to the appropriate authority.
2.5 – Cancellation
Your insurance contract may include a cancellation clause. Please refer to your policy documents for more details. If you wish to cancel your insurance policy, please let us know.
In the event of cancellation of your insurance contract, insurers may return a pro rata premium to us that we will return to you. Our fees or broker commission (if applicable) will not however be refunded in these circumstances.
Please note that in the event that you fail to pay your premium by the due date the insurance may be cancelled.
2.6 – Claims notifications
You must notify us as soon as possible, and in accordance with the notification provisions within your insurance policy, of any claim or circumstance which may give rise to a claim. Failure to promptly notify of a claim or circumstance may entitle the insurer to reject your claim. You can contact us to notify of any claim or circumstances by contacting your Account Handler.
Claims payments would normally be remitted to you directly from the insurers as soon as possible. We will provide you with assistance in submitting a claim.
As further detailed in Section 13 (Termination), our claims handling services in relation to the insurances we arrange for you continue until the termination of our appointment to act as your broker.
If you require further assistance from us following termination of our appointment, we may agree to continue our claims handing services at an additional cost. The cost and scope of any additional services will be agreed with you in writing in advance.
3 – Remuneration
We are committed to transparency in our relationship with you and so we will fully disclose the compensation we will earn in the course of arranging your insurances.
We will generally receive our remuneration by one or more of the following methods:
- a fee or administration payment for the services provided by us which will be payable by you and will be agreed with you in advance of payment; or
- a commission payment (being a percentage of the premium charged by insurers in respect of the insurance policy arranged by us) from the insurer of your policy which is included in the premium you pay.
In addition to fees and/or brokerage commission, we may also receive remuneration by way of fees or commissions or enhanced brokerage for services provided to insurers such as when we operate binding authorities or lineslips for them.
We may charge fees for additional services which we carry out on your behalf. Any additional fees will be agreed with you in advance.
All instructions which we receive verbally or in writing (which includes email) from you or your representative are binding. Any remuneration arising from such instructions will be deemed to be earned in full at the date of inception of your insurance, even if we agree that you can pay in instalments. For the avoidance of doubt once our remuneration has been earned, our fees or brokerage may not be returnable even if the insurance is cancelled after inception for whatever reason, or if our appointment is terminated for any reason.
In addition to the fees and / or commission above, if you request additional services requiring further resource, those services may require additional fees / commission which we would discuss prior to engaging in the work. In particular, if you need our assistance with a claim which requires significant time, expertise or other effort from us, we reserve the right to charge an additional sum(s) for such services. We will always agree any such charge with you before the services are provided, where practical.
In the course of satisfying your placement instructions we may engage other parties, which could include wholesale brokers, local specialists, underwriting managers or managing general agents. These parties may also earn and retain commission for their role in providing products and services to you. We may receive a proportion of the commission received by the other party and payable by the insurers to them, out of the premium which you pay.
We may sometimes act as reinsurance brokers to an insurer to arrange reinsurance for the insurer directly involved with your insurance. This placement is subject to a separate and distinct contract with its own terms and conditions. Accordingly, in such circumstances, we are remunerated separately by insurers in respect of such services.
4 – Client Money
Client money is money of any currency that we receive and hold in the course of carrying on insurance distribution activities on behalf of our clients (including you) or which we treat as client money in accordance with the FCA’s Client Assets Sourcebook (CASS). A copy of these rules is available on request.
We protect your money by depositing all client money in a specified client account, which is a statutory trust account, with banks which have been approved by the relevant regulatory authority.
This means that we are not entitled to and may not use client money held on behalf of one client to pay another client’s premium before the premium is received from that other client, and not to pay premium refunds/claims payments to another client before we receive payment from the insurer. We are not entitled to use client money to pay commissions before we receive the relevant premium from the client.
Any interest earned on client money held by us will be retained by us for our own use.
All client money held by us will be separate from our money and we will not use client money for any of our own business purposes.
4.1 – Payment to Third Parties
We may transfer client money to another person, such as another broker or settlement agent for the purpose of effecting a transaction on your behalf through that person.
This may include brokers and settlement agents outside the United Kingdom. The legal and regulatory regime applicable to a broker or settlement agent outside the United Kingdom may be different from that of the United Kingdom and in the event of a failure of the broker or settlement agent, this money may be treated in a different manner from that which would apply if the money were held by a broker or settlement agent in the United Kingdom.
4.2 – Insurer Money
We may act as agents for insurers for the collection of premiums and payment of claims and refunds of premiums. We will only do so in accordance with a written agency agreement and you will be notified if this should happen.
This means that if you pay your premium to us it will be treated as having been received by the insurer when received in our bank account and that any claims money or premium refund is treated as received by you when it is actually paid over to you.
When acting as agent of an insurer for the purposes of holding or receiving claims payments or return premiums, we will remit them to such parties as the insurer directs us to pay.
Any interest earned on insurer monies held by us shall belong to us and we shall not be required to account for it to you.
5 – Sanctions
If you are or become aware that your business in some way involves a restricted country, person or is otherwise subject to sanctions or embargoes, or any person with an interest in the proposed insurance (such as a named insured or loss payee) may be impacted by such restrictions, you should tell us immediately. If we, or your insurers, become aware of any such restrictions or embargo affecting you, your business or your insurances, then we may not act, and your insurance may be cancelled and any claims notified may not be paid.
Sanctions vary based on numerous factors including but not limited to ownership, control, structure, location, and nationality of employees and will equally apply to any companies, individuals or entities that may be insured by you as a reinsured.
We are unable to give advice on the application of sanctions to you or to warrant the position under any future sanctions regime. All sanctions issues will remain an issue for you and you must inform us if any insurance requirements may touch on sanctioned territories, individuals or organisations.
6 – Anti-bribery, Corruption and Financial Crime
We endeavour to comply with all applicable laws, rules, regulations and accounting standards and are fully committed to upholding the highest standards in respect of anti-bribery and corruption, financial crime and anti-slavery.
As such, we must conduct reasonable due diligence to protect us and our clients against the risk of financial crime. At the start and throughout our relationship, we will require you to provide evidence to assist us in verifying your identity and/or legitimacy of any transactions we conduct on your behalf.
Neither you nor we shall be involved in the offering, promising or giving of any financial or other advantage to any person in breach of any anti-bribery laws (including the Bribery Act 2010). You shall maintain your own policies and procedures to ensure compliance with the Criminal Finances Act 2017 (as applicable), in order to prevent the facilitation of tax evasion.
We are obliged to report evidence or suspicion of financial crime to the relevant authorities at the earliest reasonably opportunity and may be prohibited from disclosing any such report to you.
We will not work with clients unless they share these ethical standards.
7 – Data Protection, Confidentiality and Intellectual Property
The definitions and terms in the Data Protection Act 2018 (the “DPA”) (which implemented the General Data Protection Regulation EU 2016/679 in the UK) will apply to our engagement with you.
Information provided by you may be held, processed, disclosed and used by us, our professional advisers and any associated companies in servicing our relationship with you. Unless you notify us otherwise, you agree to the storage, use and disclosure of such information. However, all personal data you provide to us will otherwise be treated as confidential and kept secure. We have registered with the Information Commissioner’s Office on the basis we act as a controller under the DPA and we undertake to comply with the DPA in all our dealings with your personal data.
Without your prior consent we would not disclose any of your confidential information we hold, except:
- where we are required to do so by law or where requested by a regulator;
- where the disclosure is normal broking practice, for example to any (re)insurer, including via web-based platforms customarily used in the London, Lloyd’s and international insurance market;
- where we have an outsourced arrangement as part of providing our services and it is therefore necessary for us to disclose, provided those parties agree to respect the confidentiality of your information;
- if the confidential information is in the public domain without breach of this TOBA;
- to other companies within our group who may assist us in the provision of services to you.
By doing business with us, you agree that we may hold and use data provided to us by you or derived from your insurance to create sector wide statistical analysis, management information, and other aggregated data for which we may be paid. Unless we have your written consent, you will not be identifiable in any such analysis, data or statistics where provided to third parties.
We may on occasion use your name, type of insurance and/or project name (where applicable) in any marketing or other documents we may produce to third parties to illustrate our experience and expertise. Please notify us in writing if you do not consent to this.
If we have arranged your insurance under a lineslip, binding authority or facility, we may need to share information about your insurance with existing and prospective insurers of such lineslip, binder or facility. We will always do so on a confidential basis.
All the activities that we undertake on your behalf, as described in this TOBA, are provided for your exclusive use. All recommendations, proposals, reports and other information supplied to you in connection with these services are for your sole use and you agree not to make this information available to any third party without our express written permission. We retain all ownership, title, copyright and other the intellectual property rights (IP) that is created by us before or throughout our appointment with you. This IP may take the form of concepts, products, information, methodologies, software, know-how and reports. We do not give you the rights to this IP, but we do allow you to use the materials we create for you for your internal business purposes. We reserve the right to take action to protect our IP if we deem it necessary to do so.
8 – E-Security
We will communicate with each other, and other parties with whom we need to communicate in order to provide services to you, by electronic mail, and in doing so each of us may at times attach electronic data. By doing business in this way we each accept the associated risks which may include transmission of viruses, interception of or unauthorised access to communications and corruption of data.
We are not able to do business over text message, Whatsapp or other similar instant messaging system and ask that all instructions to us are sent via formal business email addresses.
9 – Records
We will maintain electronic records of all material information relating to the insurances we arrange for you and any claims we assist you with. Subject to any lien we may be entitled to exercise, we will provide you with a copy of any records which you are legally entitled to receive in such format as we consider most appropriate and reserve the right to charge you for any reasonable costs we incur in doing so. We will keep a copy for our own records in line with our regulatory and statutory obligations.
10 – Limitation of Liability
To the extent permissible under applicable laws, regulations or rules, our entire financial liability to you in respect of all losses however caused, including arising as a result of breach of contract or statutory duty, negligence or any other act or omission or breach of duty shall be limited to £5,000,000, or such other amount in US$ or any other currency that is specifically agreed with you in writing.
We shall not be liable to you, whether as a result of breach of contract or statutory duty, negligence or any other act or omission or breach of duty, for any loss of profit or any special, indirect or consequential losses arising under or in connection with the services provided to you pursuant to this TOBA.
You agree that we have a legitimate interest in limiting the exposure of our and our directors, officers and employees to litigation and that you will not bring or assist in bringing any claim against any of our directors, officers or employees in their personal capacity arising out of or in connection with the services provided.
The limitations of liability and exclusions contained in this section shall not apply to any losses or liabilities arising as a result of:
- fraud, wilful default or gross negligence by us or any of our affiliates;
- death or personal injury,
in each case in jurisdictions where such limitations or exclusions would not be permitted under applicable laws, regulations or rules; or
- any of our losses or liabilities to the extent that the limitation or exclusion of such losses or liabilities would not otherwise be permissible under applicable laws, regulations or rules.
For the avoidance of doubt this section shall be for the benefit of ourselves and our affiliates and any of our or their respective directors, officers, employees or consultants involved in the provision of the services under this TOBA. Any such person shall be entitled to rely upon and enforce its terms.
11 – What to do if you have a complaint?
If you wish to register a complaint, please contact us:
By post: The Complaints Officer, Marnix Europe Ltd., 95 Gresham Street, London, United Kingdom, EC2V 7AB
By e-mail: LDNMARNIX2@marubeni.com
By telephone: +44 (0) 207 826 8694
If you cannot settle your complaint with us, you may be entitled to refer it to the Financial Ombudsman Service:
By post: The Financial Ombudsman Service, Exchange Tower, Harbour Exchange Square, London, E14 9SR.
By telephone: 0800 023 4567.
12 – Are we covered by the Financial Services Compensation Scheme (FSCS)?
We are covered by the FSCS. You may be entitled to compensation from the scheme if we cannot meet our obligations to you. This depends on the type of business, certain eligibility criteria and the circumstances of the claim.
Further information regarding the FSCS are available online at www.fscs.org.uk or by calling 0800 678 1100.
13 – Termination
13.1 – How to terminate
We or you may terminate this TOBA at any time by providing 30 days written notice.
Furthermore, this TOBA will terminate immediately if either you or we:
- commit a material breach of this TOBA;
- cease to trade or threaten to cease to trade; or
- become insolvent or are subject to any administration, receivership, winding up or similar procedure in any jurisdiction.
We may also terminate this TOBA if you become subject to sanctions or embargoes, as described in Section 5 (Sanctions).
Notwithstanding anything else contained in this TOBA, we are not required to act for you, or continue to act for you, if we reasonably consider that to do so would put us in breach of any laws, regulations or professional rules. In such circumstances, we will be entitled to terminate our existing relationship with you with immediate effect and will not be responsible or liable to you for any direct or indirect loss which you or any other party may suffer as a result.
13.2 – Consequences of termination
From the date of termination, we shall no longer be responsible for the provision of services to you, unless otherwise agreed in accordance with this section.
If you wish for us to send copies of your records to your new broker after termination, please send us their contact details as soon as possible and we shall process your request in line with Section 9 (Records).
In the event that our services are terminated by you, we will be entitled to receive any remuneration earned or payable at that date, including by set-of or otherwise. Remuneration earned or payable to us as at that date shall include brokerage due or to become due on further instalments of premium and any further instalments of fees which were to become payable.
If you would like us to continue providing our claims services to you, please let us know in advance of termination of this TOBA. If we agree provide such services, the terms of this TOBA shall continue to apply in relation to those ongoing services, but we reserve the right to charge an additional or separate fee with immediate effect. This will be agreed in advance with you.
14 – General
14.1 – Third Party Rights
Save as otherwise set out in this TOBA, no person other than the parties to this TOBA shall benefit from this TOBA or have any rights to enforce it under the Contracts (Rights of Third Parties) Act 1999. This shall not affect any rights which may exist outside of that Act.
14.2 – Authority to give instructions
Unless instructed otherwise, we will assume that all of your employees, directors and officers who give us instructions are authorised to do so. If you have instructed a third party to deal with us on your behalf, we will assume, unless instructed otherwise, that such third party has fully authority to deal with us on your behalf as your agent.
We will not be responsible for checking that your agent has accurately passed on your instructions or whether it has your continuing authority to instruct us on your behalf. We shall not be responsible for any exposure arising from inaccurate information submitted by your agent to either us or an insurer.
14.3 – Enforceability
In the event that any part of this TOBA is found to be invalid or unenforceable, the remainder shall remain in full force and effect.
A failure at any time by us to enforce any right or obligation shall not be deemed to be a continuing waiver of such right or obligation.
14.4 – Variation
Note that we may change the terms of this TOBA from time to time to reflect changes in our services or in market practice, to reflect legal or regulatory developments or to improve the clarity of this TOBA. We will tell you if we have materially changed these terms and, in any event, we will inform you of such changes before your policy is due to renew.
14.5 – Entire Agreement
This TOBA and any associated letter of appointment you have issued to us together constitute the entire terms on which we provide services to you. It supersedes all prior discussions and representations whether written or oral.
14.6 – Governing Law and Jurisdiction
This TOBA, and any dispute arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English law. In relation to any legal action or proceedings arising out of or in connection with these terms of business both parties irrevocably submit to the nonexclusive jurisdiction of England and Wales.
Marnix Europe Ltd.