General Terms & Conditions


V2020.5 dated 2020_0 9_17

Preliminary provisions

The brokerage contract between you (the “Subscriber“) and our brokerage company, better identified in the pre-contractual information document to which these terms and conditions constitute an annex (the “Broker“), is governed by these general terms, any specific conditions expressly agreed between the parties, as well as by the laws and regulations in force within the Broker’s establishment country and the generally applicable and followed practices in insurance brokerage in Luxembourg, without prejudice to the mandatory provisions of the country of residence/establishment of the Subscriber applicable.

All your questions must have been answered by us or by the insurance company from which you are about to purchase insurance (the “Company”) before signing the insurance proposal.

Definitions

The “insurance contract” issued by the Company is a set of documents formed, among other things and according to the insurance company, by a preliminary information document (Key Information Document, IPID Files, KID,..), an insurance proposal, terms and conditions of insurance.

Read the explanations about how the contract works when submitting proposals to different insurance companies. You will find these explanations in the terms and conditions of the proposed contract and ask if any explanation is needed.

The type of insurance contracts may depend on your country of residence/establishment. The contract may provide for various additional or optional guarantees. We invite you to have them explained before signing an insurance proposal.

The “Broker” refers to one or more (in the case of co-brokerage) of the insurance brokerage firms that belong to the Gatsby & White S.A. Group and/or its broker/sub-broker/sub-agent mandated by the Subscriber(s). The list of these companies is attached to these terms and conditions and is constantly updated. These insurance brokerage companies are bound together by the direct or indirect control of their shareholding exercised by Gatsby & White S.A. It is indicated in the pre-contractual information, handed over to you by the corporation(s) with which you are in contact with.

The “Subscriber” refers to any natural person(s) or legal entity/entities in a contractual relationship or wishing to enter into a contractual relationship with the Broker for the purchase of an insurance contract with an insurance company.

1. Purpose

The Subscriber(s) mandates the Broker in the context of the subscription and administration of a life insurance, capitalisation or non-life insurance contract.

When applicable, the Broker provides insurance advice, prepares for the underwriting or conclusion of insurance contracts, or assists in their management and execution. He is committed to always acting honestly, impartially and professionally, in the best interests of the Subscriber. It respects the rules of conduct regarding the distribution of insurance as they arise from the national laws in force, the regulations adopted in enforcement of these laws and the regulations adopted by the European Union authorities in the application of the directives on the distribution of insurance, without prejudice to any mandatory rules of foreign law that would be imposed on the Broker when he operates outside the country of his head office.

By entering into the brokerage contract, you authorize the Broker, first, to obtain personalized or consistent offers (as the case may be) for you from different insurance companies, and then to represent you with the insurance company of your choice as part of the services that are the subject of this contract. Following your instructions, the Broker may (or may not) obtain copies (or originals) of any communication or information from the Company, regarding your contract, to give them to you or to allow us to accompany and assist you.

2. Entering into a relationship

The Broker is free to accept or refuse any entry into a business relationship. No business relationship is opened on behalf of a Subscriber until he/she has completed, to the broker’s satisfaction, all documents, and provided any supporting documents and information required by the Broker. A business relationship is considered valid only after it has been accepted and approved by the Broker.

The specimen signature of the bodies, proxies, and agents that can commit and represent the Broker can be consulted by the Subscriber on simple request. Only the pieces bearing these signatures bind the Broker.

3. Broker’s Obligations – Advice and Offers – Subscriber’s Choice

In conformity with applicable legislations, regulations and this Mandate, the Broker commits to:

3.1 asking the Subscriber for information about his/her/its demands and needs in relation to the insurance coverage he/she/it is seeking,

3.2 drawing the Subscriber’s attention to the potentially damaging nature of the incorrect or outdated data or information (referring to point 3.1 above). Any changes to this data or information must be reported immediately to the Broker in writing. The Broker assumes no responsibility in verifying the accuracy or completeness of such datas and pieces of information. The Subscriber is solely responsible, to the exclusion of the Broker, for the harm caused by the indication of false, inaccurate, outdated or incomplete data or information, unless the Broker knew or should have known that the information was manifestly false, inaccurate or incomplete,

3.3 conducting an analysis of the information and data transmitted by the Subscriber in order to propose solutions that meet their needs and their financial and personal situation based on the data and information obtained, to contact one or more insurance companies for personalized offers, and then to represent the Subscribers with the insurance company of their choice as part of the services that are the subject of this contract,

3.4 communicating to the Subscriber the personalized offers obtained (following the applicable and specific deadlines of each insurance company) (if applicable), the standard information documents on the insurance products concerned, and its advice (if applicable), as soon as possible after receiving the companies’ offers. The final evaluation of the board and offers, and the choice of the insurance product and the Insurance Company, belong to the Subscriber. If the Subscriber decides not to follow the broker’s advice, he will have to express it explicitly and assist the Subscriber in the completion of the insurance proposal for the insurance product chosen by the Subscriber and communicate it immediately to the insurance company.

Subscribers whose country of residence or establishment is Luxembourg: the Broker always provides the Subscriber with advice based on an impartial and personalized analysis, unless the Subscriber expressly renounces to it.

For Subscribers residing or living in a country other than Luxembourg: the Broker provides or does not provide advice, according to the applicable legislation and informs the Subscriber.

4. Subscriber’s obligations

The subscriber(s) commit to:

– Providing the Broker with the exact identification information (name/denomination, residence/headquarters, nationality, marital status, profession, etc.) and providing the supporting documents requested by the Broker (including a copy of the identity card) to enable him to fulfil his legal obligations, at the beginning of the relationship. Any changes to the data should be reported immediately to the Broker in writing.

– (For legal entities) producing a compliant copy of their updated statutes, an extract from the register of trade and companies up-to-date (or any other related documents), the identification of economic beneficiaries, the list of persons authorized to hire them and represent them in respect of third parties, any evidence justifying the authorization to take out an insurance contract on behalf of the corporation and, if necessary, a compliant copy of

the domicile contract with a duly approved home agent. They will also produce a copy of the valid ID of the representative/manager and the economic beneficiaries of the legal entity.

– providing accurate, complete and valid information and data in accordance with Article 3 of these terms and conditions;

– informing the Broker in writing as soon as possible of any change in circumstances or changes in his data.

The Broker assumes no responsibility for verifying the accuracy or completeness of the data provided to him by the Subscriber. The Subscriber alone is responsible, excluding the Broker, for the harm caused by the indication of inaccurate, outdated or incomplete data.

5. Communication between the Subscriber and the Broker

Unless otherwise agreed, all documents sent by the Broker to the Subscriber(s) will be sent by regular mail at the last address indicated by the Subscriber. The proof of sending the correspondence to the Subscriber(s) is validly established by the Broker, by the production of the dated copy of the correspondence. In the case of hand-in-hand, the date is the one on the letter of receipt of the documents.

The Broker sends by recommended letter with acknowledgement or hands-on documents for which the Insurance Company has an obligation to report (e.g., Special Conditions, Annual Situation Report, Endorsements) on a visit to the Subscriber. If the Subscriber has not received the above documents within 30 days, he or she must notify the Broker within two months of the time he or she should have received the information.

Any communication of the Subscriber with the Broker must be done in writing. Proof of existence, content and disclosure rests with the Subscriber. In the event of a plurality of Subscribers, the Broker will only accept joint instructions (unless otherwise agreed in writing). However, the Subscriber may request to provide the Broker with instructions through electronic means of communication. In this case, the Broker’s entries alone prove that the instructions were properly executed.

The Subsciber states that he has been properly informed that the authenticity and confidentiality of messages exchanged by electronic means cannot be guaranteed by the Broker. They say they are aware of the risks and are committed to all the consequences.

6. Broker’s incentive and conflict of interest policies

In accordance with the current legislation and regulations, the Broker has internal procedures and policies in place to manage the interests of the Subscriber honestly, fairly and professionally. This is the case when it comes to managing conflicts of interest, gifts and other benefits, arbitration advice and compensation. The Subscriber(s) can obtain from the Broker, on simple request, a more detailed description of the incentive and conflicts of interest policies that are otherwise available on our website: www.gatsbyandwhite.com

7. Professional secrecy

The Broker is bound by professional secrecy as it is organized and enforced under the applicable legislation in his country of residence.

In particular, in Luxembourg, Gatsby & White S.A. is subject to Article 300 of the Insurance Sector Act of 7 December 2015. Thus, the Broker is obliged to keep secret the information entrusted to him by the Subscriber in the course of his professional activity.

However, there is no duty to secrecy for insurance companies, banking institutions, insurance professionals (PSA) or financial sector professionals (PSF), if the information is provided by the Broker as part of a service contract.

In addition, the Subscriber expressly agrees to waive the professional secrecy of the Broker to allow the disclosure of information between the companies part of the Gatsby & White group or to third parties – as defined in par. 3 above -, which can be located outside the Grand Duchy of Luxembourg, as long as such communication is necessary or useful to give advice, carry out work in preparation for the subscription or the conclusion of insurance contracts, or assist in their management and execution. If this communication concerns personal data about a natural person, this communication will be made in accordance with the Privacy Notice.

The respect of the professional secrecy by the Insurance Company does not exist towards the Broker regarding information relating to the contracts for which the Broker acts as an intermediary.

The Subscriber may, however, object at any time to the disclosure to the Broker of information about his or her contracts. The Broker draws the Subscriber’s attention here to the fact that in such a case the Broker will no longer be able to adequately fulfil his role, will no longer be able to advise the Subscriber, nor act in the best interests of the Subscriber. Such opposition is therefore made at the risks and perils of the Subscriber.

8. Right to complaint

Any complaints about the Broker and its employees should be addressed to the following address only:

Gatsby & White S.A. FAO: Service des Réclamations 40 rue du Curé LU-1368 Luxembourg

The Broker commits to respond as soon as possible. After exhausting his dealings with the Broker, and in the event that he has not obtained satisfaction, the Subscriber has the opportunity to refer the matter to a mediator.

The Subscriber can also refer the relevant Control Authorities for the Broker with which he/she is in contact with. These Control Authorities are indicated in the Pre-contractual Information to you.

The Broker makes available on its website its complaints management policy as well as a list of authorities and agencies to whom the Subscriber can send his/her claim: http://www.gatsbyandwhite.com

9. Processing personal data

In accordance with applicable legislation on the protection of persons with respect to the treatment of personal data, the Broker informs the Subscriber that it is collecting and processing personal data concerning the person(in this matter) data related to his (their) health. All data may be kept by the Broker during legal prescription.

The Subscriber(s) has/have the right to access this information and the right to make the necessary changes. The Broker undertakes to immediately forward any request for changes or correction of personal data to the insurance company concerned.

The Subscriber(s) acknowledge(s) the broker’s right to record his/her/their electronic communications and in particular his/her/their telephone conversations. These communications may be used as evidence in the same way as a piece of evidence. Failure to register or retain cannot be invoked against the Broker. Records may not be shared with third parties except in cases authorized by law.

Evidence contrary to the Broker’s computer records from original documents can only be reported by the Subscriber by a similar document or written document.

10. Fees

Brokerage fees, or commissions, are defined in the brokerage mandate unless there is written different information.

11. Modification of the insurance brokerage terms

The Broker may change these General Insurance Brokerage Terms and other clauses of this Mandate at any time. The Subscriber will be informed of such a change in according with the terms and conditions of correspondence under Article 5 supra or what foreseen in your insurance (co-)brokerage mandate.

These changes will be considered approved if the Subscriber(s) does/do not oppose in writing within 30 days of the date the information was disclosed or made available to it, or before the Subscriber performs transactions or instructs to execute an order before the deadline expires. In this case, by executing a transaction or giving instruction to the Broker under the new conditions, the Subscribers agree with the changes on the date of the transaction or the instruction. Changes resulting from a legislative or regulatory change are enforceable against the Subscriber without prior notification.

12. Responsibility and compensation

12.1. In the context of its business relationship with the Client, the Broker only responds, for any action or inaction, due to its gross misconduct or intentional fault, except in cases of bodily harm.

12.2. Unless expressly specified in the brokerage contract, the Broker’s obligations are obligations of means. In particular in relation to any advice given by the Broker, the Broker acts as a good family man, based on the data and information provided by the Client and his knowledge at the time the advice is given. The Broker cannot be held liable if the advice appears to be inadequate or erroneous, due to elements, circumstances or events that were not known to the Broker or were not reasonably foreseeable by the Broker.

12.3. If the Client does not follow the advice given by the Broker and subscribes to an insurance product other than that (or one of those) advised by the Broker (whenever the local regulation allows it), the Client expressly waives the Broker from any generally any adverse consequences that might result to the Client from that choice.

12.4. The Broker has taken out insurance covering his professional liability with AIG Europe S.A., policy number BF33001183.

12.5. The Client undertakes to compensate the Broker for any damages and losses (including legal and legal costs to the greatest extent authorized by applicable law) that the Broker would suffer as a result of the Client’s failure to comply with these general brokerage terms.

13. Uniqueness and safeguard clause

These Terms and Conditions are part of all pre-contractual and contractual documentation. The illegality (partial or total) or total inapplicability of any or more clauses of these terms and conditions or all of the pre-contractual and contractual documentation of the Insurance Brokerage Mandate will not affect the applicability of the other agreed terms.

14. Duration and Termination

14.1. Unless expressly agreed otherwise, the brokerage contract is entered into for an unlimited period and may be terminated under the terms of these general terms and conditions.

14.2. The brokerage contract may be terminated by each party at any time, by sending a recommended letter with acknowledgement to the other party. The termination will take effect on the business day after the mail is received. Even after the termination of the brokerage contract, these brokerage terms and conditions remain applicable for the termination of ongoing relationships.

14.3. In the event of termination of the brokerage contract, the Broker will inform the insurance company or companies with which the Client(s) has/have taken out one or more insurance contracts through the Broker. At the latest being the date of termination, the Client will have to contact the insurance company directly, or choose another insurance distributor.

14.4. The fact that the Client makes a choice, for one or more insurance contracts underwritten through the Broker, from another insurance distributor, will not imply the end of the brokerage contract. This choice of the Client will only put an end to the obligations of the parties resulting from the brokerage contract in that they relate to the contract(s) in question. However, the brokerage contract will automatically end when the Client chooses another distributor for the last insurance contract, which the Broker was still in charge of.

14.5. The client acknowledges that the termination of a contract with respect to an insurance company does not automatically result in the termination of the brokerage contract.

15. Applicable law and judicial jurisdiction

The applicable law of the brokerage mandate is that of the country of tax residence of the Subscriber at the time of the purchase of the insurance product. The Subscriber’s action may be brought before the courts of the head office of the company with which the Mandate was concluded or in front of those of the State where the Subscriber is domiciled. In the case of co-brokerage, the Luxembourg Courts are exclusively competent when the Subscribing is addressing his claim against the brokers. If the action is brought by the Broker, the courts of the State are exclusively competent in the territory of which the Subscriber(s) is/are domiciled.