In view of the boom being experienced in Nigeria’s agency banking services where some agency banking service providers now process more than N100billion monthly, negotiating super agency banking contract is becoming routine work for In-House Counsels in Banking and financial services sector that include telecommunication companies (Telcos), and mobile money operators and, deposit money banks (the “Principals”).
The CBN’s (Central Bank of Nigeria) 2013 Guidelines for the Regulation of Agent Banking and Agent Banking Relationships in Nigeria (the “agency banking regulations”) began to be utilized more effectively in the industry from the year 2016. SANEF (Shared Agent Network Expansion Facilities Limited) who is the CBN’s long arm to drive and widen financial access points and services and increase financial inclusion up to 80% in the year 2020 was only incorporated in the year 2019.
From our industry experience in negotiating super-agency banking contracts with in-House Counsels and, in view of the need for more compliance to agency banking regulations, we have developed this Checklist with hope that it will be useful to in-House Counsels or members of agency banking groups in Nigerian banking and financial services sector in drafting, review and negotiating super-agency banking contracts.
Generally, we recommend you bear in mind the objectives of the Guidelines which include providing minimum standards and requirements for agent banking operations and to enhance financial inclusion as well as to provide for agent banking as a delivery channel for offering banking services in a cost effective manner. – This implies that in-House Counsels should adopt the attitude of engendering the growth of super-agents in all circumstances without comprising key boilerplates.
Agent Banking means provision of financial services to customers by third-parties on behalf of licensed deposit money banks or mobile money operator.
Agent is an entity that is engaged by a financial institution to provide specific financial services on its behalf using the agent’s premises provided that where there is a super-agent an individual may be an agent.
Associate of an FI may be an employee (current or former), his or her relations, including spouse, parent, children or any persons with a pecuniary interest in the Financial Institution (FI).
FI means any institution licensed by the CBN to accept deposits and conduct banking or other financial services as defined by BOFIA and includes Mobile Money Operators and Telcos.
Third Party Service Providers means any parties other than the principal and agent who are in contract with either the principal or agent specifically relating to the existing agent banking relationship.
Super-Agent is an agent that has been contracted by the principal and thereafter may subcontract to sub-agents in a network while retaining overall responsibility for the agency services.
Sole Agent is an agent who does not delegate powers to other agents but assumes responsibilities for agency relationship.
Sub-Agent is an entity or individual to whom some or all aspects of agency banking have been delegated to by a Super-Agent.
1. WHO CAN ACT AS A SUPER AGENT-BANKER
An entity is required, that is, a corporate person or unincorporated person, who has been in business for not less than 12 (twelve) months prior to application to act as an agent-banker and, whose business is a going concern. The Super-agent is also licenced and regulated by the CBN and are usually artificial persons.
Not-for-profit making organizations or any other organizations if appointment as an agent violates any laws, regulations or the objects of the entity is disqualified such as law firms or hospitals or BDCs unless they obtain consents of their regulators.
Super-agents shall be ethically and professionally suitable and the requirement of suitability extends to moral and professional rectitude of its directors as well as CEOs and other key officers.
2. COMPLIANCE OBLIGATIONS
You should proceed in accordance with traditional boiler plates to state the parties and, you may in the background column itemize all commercial activities the super-agent is currently engaged in.
Require super-agent to provide periodic annual updates or as soon as any changes occur and to renew the agreement bi-annually. Insert a clause stating that the super-agents’ continued rendering of your services to the customers after 6 (six) months amount to a renewal of the agreement without more.
Super-agents have a duty to cooperate with the CBN or its authorized personal (perhaps accompanied by your authorized staff, to foreclose abuse by mischievous competitors) to inspect any of the agents’ activities including documents. It should include free, full, unfettered and timely access to agent’s reports or records (whether electronic or otherwise), staff and premises of the agent in so far as agency banking business is concerned.
The Guidelines foists all liabilities arising from agency banking services on the Principal – it requires the agreement to contain reference to the Principal’s full liabilities for the agreement. We do not think that any Court will uphold a clause wherein the Principal sought to push liabilities to the Super-agents by way of indemnities.
Approved agency banking activities include:
a. Account opening, deposits and withdrawals
b. Fund transfer services and
c. Bills payments
State details of super-agents’ remunerations, fees and all charges in respect of agency banking as well as that it is not permitted to charge any fees directly to the customers.
Indicate if super-agent has responsibility for expenses (directly or indirectly) relating to the activities of the agency. – Expenses here include sub-agent’s or the super-agents’ costs of mobile data plans and electricity bills for charging mobile devices. Generally, these are obligations of super-agents.
Determine who provides infrastructure and procures 3rd party service providers including for any other related services.
Impose limits on cash-on-the sub-agent and safety measures for devices (subject to any insurance policy).
Ask the super-agent to indemnify you for frauds or fraud related cases only.
Super-agent is to comply with AML/CFT and KYC requirements and provide obligation to deliver transaction support documents to the Principal as well as to participate in any period periodic training especially on AML/CFT.
Include in your favour confidentiality and intellectual property right clause on customers and user information and, any data collected by the super-agent in respect of agency banking whether from the customers, from you or from other sources. State that the super-agent acts as a data processor only pursuant to the NDPR 2019.
Provide remedies open to the Principals if super-agent fails to discharge its obligations. Indicate Super-agent’s business hours bearing in mind that agency banking is unlike traditional banking services (perhaps you have to validate services rendered outside non-business hours unless you will shut down agency banking application as well)
Require super-agent to provide periodic updates on technical description of devices such as mobile phones and mPOS or POS whenever a change occurs.
Indicate independent contractual nature of the relationship, allow sub-contracting of agency banking services only and deny assignment of the agreement subject to prior consent.
Require super-agent to ensure safe-keeping of all relevant records, data, documents or files and to provide periodic access to you at agreed intervals and to ship or destroy all related data when agreement is determined.
Require super-agent to notify you when its sub-agents relocate, transfer or close its agent banking premises bearing in mind that agent should give 30 days’ notice of intention to relocate, transfer or close agent banking premises and a copy of it shall be posted at his premises. – This will reduce inactive agents’ profile.
Provide clauses on renegotiation of contract, events of default and termination together with a transition clause on surviving obligations of parties upon determination of the agreement.
Insert a dispute resolution clause. Bear in mind that freedom of contract is permitted subject to the Guidelines.
Allow non-exclusivity of super-agent banking relationship because a super-agent may provide its services to as many Principals as he can accommodate and, the capacity of the super-agent to accommodate more Principals is determinable by the incoming FI.
Require super-agent to to use your logo and signage in any sub-agents’ location.
3. PROHIBITED ACTIVITIES
State that a super-agent shall not:
Carry out any transactions when there is communication failure with the Principal.
Carry out a transaction where a receipt or acknowledgement cannot be generated. Pre-agree on who bears cost of printing facilities in the absence of e-receipts for transactions.
Directly charge the customer any fees.
Give any guarantees
Offer banking services on its own accord.
Continue with the agency business when it or its directors or key management staff has a proven criminal record involving fraud, dishonesty, integrity or any other financial impropriety
Provide, render or hold itself out to be providing or rendering any banking service which is not specifically permitted in the contract
Open accounts, grant loans or carry out any appraisal function for purposes of opening an account or granting of a loan or any other facility except as may be permitted by any other written law to which the agent is subject.
Undertake cheque deposit and encashment of cheques or transact in foreign currency.
Provide cash advances or be run or managed by the Principal’s associate.
Finally, while negotiating a super-agency contract, the underlining aim is to engender financial inclusion without breaching the Regulations or neglect profits. In our view, an existing insurance policy of the super-agent will suffice whether or not it gives to the Principal any right of first loss payee. Otherwise the super-agent will have to incur avoidable costs on insurance policies for each of the numerous Principals it aims to render services to.