SELLING AGREEMENT
This Selling Agreement ("Agreement") is made effective as of the ____ day of
____________, ______, by and among Business Men's Assurance Company of America,
a Missouri corporation ("Life Company"); Xxxxx & Xxxxxx, Inc., a Missouri
corporation ("Distributor"); ________________________________ ("Broker/Dealer");
and, _____________________________________________________ ("Insurance Agent").
RECITALS:
Pursuant to a distribution agreement with Distributor, Life Company has
appointed Distributor as the principal underwriter of the variable annuity and
variable life contracts identified in Schedule I to this Agreement and such
other variable annuity contracts or variable life insurance contracts that may
be added to Schedule I from time to time in accordance with Section II(F) of
this Agreement. Such contracts together with any fixed annuity or non-variable
life insurance contracts shown on Schedule III (if attached) shall be referred
to herein as "Contract(s)."
The parties to this Agreement desire that Broker/Dealer and Insurance Agent be
authorized to solicit applications for the sale of the Contracts to the general
public subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual promises and
covenants hereinafter set forth, the parties agree as follows:
I. Additional Definitions
A) Affiliate - With respect to a person, any other person controlling,
controlled by, or under common control with, such person.
B) Agent - An individual associated with Insurance Agent and Broker/Dealer who
is appointed by Life Company as an agent for the purpose of soliciting
applications.
C) NASD - The National Association of Securities Dealers, Inc.
D) 1933 Act - The Securities Act of 1933, as amended.
E) 1934 Act - The Securities and Exchange Act of 1934, as amended.
F) 1940 Act - The Investment Company Act of 1940, as amended.
G) Premium - A payment made under a Contract to purchase benefits under such
Contract.
H) Prospectus - With respect to each Contract, the prospectus for such Contract
included within the Registration Statement for such Contract; provided, however,
that, if the most recently filed prospectus, filed pursuant to Rule 497 under
the 1933 Act subsequent to the date on which the Registration Statement became
effective differs from the prospectus on file at the time the Registration
Statement became effective, the term "Prospectus" shall refer to the most
recently filed prospectus filed under Rule 497 from and after the date on which
it shall have been filed.
I) Registration Statement - With respect to each Contract, the most recent
effective registration statement(s) filed with the SEC or the most recent
effective post-effective amendment(s) thereto with respect to such Contract,
including financial statements included therein and all exhibits thereto. There
may be more than one Registration Statement in effect at a time for a Contract;
in such case, any reference to "the Registration Statement" for a Contract shall
refer to any or all, depending on the context, of the Registration Statements
for such Contract.
J) SEC - The Securities and Exchange Commission.
K) Service Center - Policy Service Office: Phone 0(000) 000-0000.
Mailing address for non-cash administrative mail: Service Center, X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000 Mailing Address for cash and paperwork with cash:
Service Center, X.X. Xxx 00000 Xxxxxxxxxx, XX 00000-0000
II. Authorization of Broker/Dealer and Insurance Agent
A) Distributor hereby authorizes Broker/Dealer under the securities laws, and
Life Company hereby authorizes and appoints Insurance Agent under the insurance
laws, each in a non-exclusive capacity, to distribute the Contracts.
Broker/Dealer and Insurance Agent accept such authorization and appointment and
shall use their best efforts to find purchasers for the Contracts, in each case
acceptable to Life Company.
B) Life Company shall notify Broker/Dealer and Insurance Agent in writing of all
states and jurisdictions in which Life Company is licensed to sell the
Contracts. Broker/Dealer and Insurance Agent acknowledge that no territory is
exclusively assigned hereunder, and Life Company reserves the right in its sole
discretion to establish or appoint one or more agencies in any jurisdiction in
which Insurance Agent transacts business hereunder.
C) Insurance Agent is vested under this Agreement with power and authority to
select and recommend individuals associated with Insurance Agent for appointment
as Agents of Life Company, and only individuals so recommended by Insurance
Agent shall become Agents, provided that Life Company reserves the right in its
sole discretion to refuse to appoint any proposed agent or, once appointed, to
terminate the same at any time with or without cause.
D) Neither Broker/Dealer nor Insurance Agent shall expend or contract for the
expenditure of the funds of Life Company. Broker/Dealer and Insurance Agent each
shall pay all expenses incurred by each of them in the performance of this
Agreement, unless otherwise specifically provided for in this Agreement or
unless Life Company and Distributor shall have agreed in advance in writing to
share the cost of certain expenses. Initial and renewal state appointment fees
for Insurance Agent and appointees of Insurance Agent as Agents of Life Company
will be paid by Life Company according to the terms set forth in the rules and
regulations as may be adopted by Life Company from time to time. Neither
Broker/Dealer nor Insurance Agent shall possess or exercise any authority on
behalf of Distributor or Life Company other than that expressly conferred on
Broker/ Dealer or Insurance Agent by this Agreement. In particular, and without
limiting the foregoing, neither Broker/Dealer nor Insurance Agent shall have any
authority, nor shall either grant such authority to any Agent, on behalf of
Distributor or Life Company: to make, alter or discharge any Contract or other
contract entered into pursuant to a Contract; to waive any Contract forfeiture
provision; to extend the time of paying any Premiums; or to receive any monies
or Premiums from applicants for or purchasers of the Contracts (except for the
sole purpose of forwarding monies or Premiums to Life Company).
E) Broker/Dealer and Insurance Agent acknowledge that Life Company has the right
in its sole discretion to reject any applications or Premiums received by it and
to return or refund to an applicant such applicant's Premium.
F) Life Company, in its sole discretion, may amend Schedule I and/or Schedule
III to this Agreement from time to time to include other Contracts or to delete
Contracts from the Schedules.
G) Distributor and Life Company acknowledge that Broker/Dealer and Insurance
Agent are each an independent contractor. Accordingly, Broker/ Dealer and
Insurance Agent are not obliged or expected to give full time and energies to
the performance of their obligations hereunder, nor are Broker/Dealer and
Insurance Agent obliged or expected to represent Distributor or Life Company
exclusively. Nothing herein contained shall constitute Broker/Dealer, Insurance
Agent, the Agents or any agents or representatives of Broker/Dealer or Insurance
Agent as employees of Distributor or Life Company in connection with
solicitation of applications for the Contracts.
III. Licensing and Registration of Broker/Dealer, Insurance Agent and Agents
A) Broker/Dealer represents and warrants that it is a Broker/Dealer registered
with the SEC under the 1934 Act, and is a member of the NASD in good standing.
Broker/Dealer must, at all times when performing its functions and fulfilling
its obligations under this Agreement, be duly registered as a Broker/Dealer
under the 1934 Act and as required by applicable law, in each state or other
jurisdiction in which Broker/Dealer intends to perform its functions and fulfill
its obligations hereunder.
B) Insurance Agent represents and warrants that it is a licensed life insurance
agent where required to solicit applications. Insurance Agent must, at all times
when performing its functions and fulfilling its obligations under this
Agreement, be duly licensed to sell the Contracts in each state or other
jurisdiction in which Insurance Agent intends to perform its functions and
fulfill its obligations hereunder.
C) Broker/Dealer shall ensure that no individual shall offer or sell the
Contracts on its behalf in any state or other jurisdiction, in which the
Contracts may lawfully be sold, unless such individual is an associated person
of Broker/Dealer (as that term is defined in Section 3(a)(18) of the 0000 Xxx)
and duly registered with the NASD and any applicable state securities regulatory
authority as a registered person of Broker/Dealer qualified to distribute the
Contracts in such state or jurisdiction. Broker/Dealer shall be solely
responsible for the background investigations of the Agents to determine their
qualifications and will provide Life Company upon request with copies of such
investigations.
D) Insurance Agent shall ensure that no individual shall offer or sell the
Contracts on behalf of Insurance Agent in any state or other jurisdiction unless
such individual is duly affiliated as an agent of Insurance Agent, duly licensed
and appointed as an agent of Life Company and appropriately licensed, registered
or otherwise qualified to offer and sell the Contracts to be offered and sold by
such individual under the insurance laws of such state or jurisdiction.
Insurance Agent shall be responsible for investigating the character, work
experience and background of any proposed agent prior to recommending
appointment as agent of Life Company. Upon request, Life Company shall be
provided with copies of such investigation. All matters concerning the licensing
of any individuals recommended for appointment by Insurance Agent under any
applicable state insurance law shall be a matter directly between Insurance
Agent and such individual, and the Insurance Agent shall furnish Life Company
with proof of proper licensing of such individual or other proof, reasonably
acceptable to Life Company.
E) Broker/Dealer and Insurance Agent shall notify Distributor and Life Company
immediately upon termination of an Agent's association with Broker/Dealer or
Insurance Agent.
F) Without limiting any of the foregoing, Broker/Dealer and Insurance Agent
represent that they are in compliance with the terms and conditions of letters
issued by the Staff of the SEC with respect to the non-registration as a
broker/dealer of an insurance agency associated with a registered broker/dealer.
Broker/Dealer and Insurance Agent shall notify Distributor immediately in
writing if Broker/Dealer and/or Insurance Agent fail to comply with any such
terms and conditions and shall take such measures as may be necessary to comply
with any such terms and conditions.
IV. Broker/Dealer and Insurance Agent Compliance
A) Broker/Dealer and Insurance Agent hereby represent and warrant that they are
duly in compliance with all applicable federal and state securities laws and
regulations and all applicable insurance laws and regulations. Broker/Dealer and
Insurance Agent each shall carry out their respective obligations under this
Agreement in continued compliance with such laws and regulations. Broker/Dealer
shall be responsible for securities training, supervision and control of the
Agents in connection with their solicitation activities with respect to the
Contracts and shall supervise Agents' compliance with applicable federal and
state securities law and NASD requirements in connection with such solicitation
activities. Broker/Dealer and Insurance Agent shall comply, and shall ensure
that Agents comply, with the rules and procedures established by Life Company
from time to time, and the rules set forth below, and Broker/Dealer and
Insurance Agent shall be solely responsible for such compliance.
B) Broker/Dealer, Insurance Agent and Agents shall not offer or attempt to offer
the Contracts, nor solicit applications for the Contracts, nor deliver
Contracts, in any state or jurisdiction in which the Contracts may not lawfully
be sold or offered for sale.
C) Broker/Dealer, Insurance Agent and Agents shall not solicit applications for
the Contracts without delivering the Prospectus for the Contracts, the
then-currently effective prospectus(es) for the underlying fund(s) and, where
required, the then-currently effective statement of additional information for
the Contracts.
D) Broker/Dealer, Insurance Agent and Agents shall not recommend the purchase of
a Contract to an applicant unless each has reasonable grounds to believe that
such purchase is suitable for the applicant in accordance with, among other
things, applicable regulations of any state insurance commission, the SEC and
the NASD.
E) Insurance Agent shall return promptly to Life Company all receipts for
delivered Contracts, all undelivered contracts and all receipts for
cancellation, in accordance with the requirements established by Life Company
and/or as required under state insurance law. Upon issuance of a Contract by
Life Company and delivery of such Contract to Insurance Agent, Insurance Agent
shall promptly deliver such Contract to its purchaser. For purposes of this
provision "promptly" shall be deemed to mean not later than five calendar days.
Life Company will assume that a Contract will be delivered by Insurance Agent to
the purchaser of such Contract within five calendar days for purposes of
determining when to transfer premiums initially allocated to the Money Market
Account, in those states requiring a refund of purchase payment available under
such Contracts, to the particular investment options specified by such
purchaser. As a result, if purchasers exercise the "free-look" provisions under
such Contracts, Broker/ Dealer hereby agrees to indemnify, defend and hold
harmless Life Company for any loss incurred by Life Company that results from
Insurance Agent's failure to deliver such Contracts to the purchasers within the
contemplated five calendar day period.
F) In the event that Premiums are sent to Insurance Agent or Broker/Dealer,
rather than to the Service Center, Insurance Agent and Broker/Dealer shall
promptly (and in any event, not later than two business days) remit such
Premiums to Life Company at the Service Center. Insurance Agent and
Broker/Dealer acknowledge that if any Premium is held at any time by either of
them, such Premium shall be held on behalf of the customer, and Insurance Agent
or Broker/Dealer shall segregate such premium from their own funds and promptly
(and in any event, within two business days) remit such Premium to Life Company.
All such Premiums, whether by check, money order or wire, shall at all times be
the property of Life Company. Insurance Agent and Broker/Dealer will comply with
the instructions for remittance and other administrative process specified in
Schedule II.
G) Neither Broker/Dealer nor Insurance Agent, nor any of their directors,
partners, officers, employees, registered persons, associated persons, agents or
affiliated persons, in connection with the offer or sale of the Contracts, shall
give any information or make any representations or statements, written or oral,
concerning the Contracts, the underlying funds or fund Shares, other than
information or representations contained in the Prospectuses, statements of
additional information and Registration Statements for the Contracts, or a fund
prospectus, or in reports or proxy statements therefor, or in promotional, sales
or advertising material or other information supplied and approved in writing by
Distributor and Life Company.
H) Broker/Dealer and Insurance Agent shall not use or implement any promotional,
sales or advertising material relating to the Contracts without the prior
written approval of Distributor and Life Company.
I) Broker/Dealer and Insurance Agent shall be solely responsible under
applicable tax laws for the reporting of compensation paid to Agents.
J) Broker/Dealer and Insurance Agent each represent that it maintains and shall
maintain such books and records concerning the activities of the Agents as may
be required by the SEC, the NASD and any appropriate insurance regulatory
agencies that have jurisdiction and that may be reasonably required by Life
Company. Broker/Dealer and Insurance Agent shall make such books and records
available to Life Company upon written request.
K) Broker/Dealer and Insurance Agent shall promptly furnish to Life Company or
its authorized agent any reports and information that Life Company may
reasonably request for the purpose of meeting Life Company's reporting and
record keeping requirements under the insurance laws of any state, under any
applicable federal and state securities laws, rules and regulations, and the
rules of the NASD.
L) Broker/Dealer and Insurance Agent represent and warrant that they are and
that they will remain in compliance with all applicable anti-money laundering
laws and regulations, including but not limited to the requirements of USA
PATRIOT ACT of 2001. Broker/Dealer and Insurance Agent will also ensure that
they adhere to applicable anti-money laundering requirements applicable to the
transactions contemplated by this Agreement, and they will provide documentation
of their respective anti-money laundering programs and procedures upon Life
Company or Distributor's request.
M) Broker/Dealer shall secure and maintain a fidelity bond (including coverage
for larceny and embezzlement), issued by a reputable bonding company, covering
all of its directors, officers, agents and employees who have access to funds of
Life Company. This bond shall be maintained at Broker/Dealer's expense in at
least the amount prescribed by the NASD rules. Broker/Dealer shall upon request
provide Distributor with a copy of said bond. Broker/Dealer shall also secure
and maintain errors and omissions insurance acceptable to Distributor and
covering Broker/Dealer, Insurance Agent and Agents. Broker/Dealer hereby assigns
any proceeds received from a fidelity bonding company, errors and omissions or
other liability coverage, to Distributor or Life Company as their interests may
appear, to the extent of their loss due to activities covered by the bond,
policy or other liability coverage. If there is any deficiency amount, whether
due to a deductible or otherwise, Broker/Dealer shall promptly pay such amount
on demand. Broker/Dealer hereby agrees to indemnify and holds harmless
Distributor and/or Life Company from any such deficiency and from the costs of
collection thereof, including reasonable attorneys' fees.
V. Sales Materials
A) During the term of this Agreement, Distributor and Life Company will provide
Broker/Dealer and Insurance Agent, without charge, with as many copies of
Prospectuses (and any supplements thereto), current fund prospectus(es) (and any
supplements thereto), and applications for the Contracts, as Broker/Dealer or
Insurance Agent may reasonably request. Upon termination of this Agreement,
Broker/Dealer and Insurance Agent will promptly return to Distributor any
Prospectuses, applications, fund prospectuses, and other materials and supplies
furnished by Distributor or Life Company to Broker/Dealer or Insurance Agent or
to the Agents.
B) During the term of this Agreement, Distributor will be responsible for
providing and approving all promotional, sales and advertising material to be
used by Broker/Dealer and Insurance Agent. Distributor will file such materials
or will cause such materials to be filed with the SEC, the NASD, and/or with any
state securities regulatory authorities, as appropriate.
VI. Commissions
A) During the term of this Agreement, Distributor and Life Company, as
applicable, shall pay to Broker/Dealer or Insurance Agent, as applicable,
commissions and fees set forth in Schedule I and/or Schedule III to this
Agreement. The payment of such commissions and fees shall be subject to the
terms and conditions of this Agreement and those set forth on Schedule I and/or
Schedule III. Life Company may amend Schedule I and/or Schedule III, including
the commissions and fees therein, at any time, in any manner and without prior
notice. Any amendment to Schedule I and/or Schedule III will be applicable to
any Contract for which any application or Premium is received by the Service
Center on or after the effective date of such amendment. However, Life Company
reserves the right to amend such Schedules with respect to subsequent premiums
and renewal commissions. Compensation with respect to any Contract shall be paid
to Insurance Agent only for so long as Insurance Agent is the agent-of-record
and maintains compliance with applicable state insurance laws and only while
this Agreement is in effect.
B) No compensation shall be payable, and Broker-Dealer and Insurance Agent agree
to reimburse and indemnify Distributor and Life Company for any compensation
that may have been paid to Broker-Dealer, Insurance Agent or any Agents in any
of the following situations: (i) Life Company, in its sole discretion,
determines not to issue the Contract applied for; (ii) Life Company refunds the
premiums upon the applicant's surrender or withdrawal pursuant to any
"free-look" privilege; (iii) Life Company refunds the premiums paid by applicant
as a result of a complaint by applicant; (iv) Life Company determines that any
person soliciting an application who is required to be licensed or any other
person or entity receiving compensation for soliciting applications or premiums
for the Contracts is not or was not duly licensed as an insurance agent; or (v)
any other situation listed on Schedule I and/or Schedule III.
C) Agents shall have no interest in this Agreement or right to any commissions
to be paid by Distributor or Life Company to Insurance Agent. Insurance Agent
shall be solely responsible for the payment of any commission or consideration
of any kind to Agents. Insurance Agent shall have no right to withhold or deduct
any commission from any Premiums which it may collect unless and only to the
extent that Schedule I and/or Schedule III of this Agreement permits Insurance
Agent to net its commissions against Premiums collected. Insurance Agent shall
have no interest in any compensation paid by Life Company to Distributor or any
affiliate, now or hereafter, in connection with the sale of any Contracts
hereunder.
VII. Term and Termination
This Agreement may not be assigned except by written consent of the parties
hereto and by Distributor to another entity appropriately registered with the
NASD upon providing Broker/Dealer and Insurance Agent ten business days' advance
written notice. This Agreement shall continue for an indefinite term, subject to
the termination by any party hereto upon thirty days' advance written notice to
the other parties, except that in the event Distributor or Broker/Dealer ceases
to be a registered broker/dealer or a member of the NASD, or Insurance Agent
ceases to be properly licensed, this Agreement shall immediately terminate. Upon
its termination, all authorizations, rights and obligations under this Agreement
shall cease, except the agreements in Sections VI, VIII, X, XV and XIX, which
shall survive any such termination.
VIII. Complaints and Investigations
A) Distributor, Life Company, Broker/Dealer and Insurance Agent shall cooperate
fully in any insurance regulatory investigation or proceeding or judicial
proceeding arising in connection with the Contracts marketed under this
Agreement. In addition, Distributor, Life Company, Broker/Dealer and Insurance
Agent shall cooperate fully in any securities regulatory investigation or
proceeding or judicial proceeding with respect to Distributor, Life Company,
Broker/Dealer, their Affiliates and their agents, to the extent that such
investigation or proceeding related to the Contracts marketed under this
Agreement. Without limiting the foregoing:
1) Broker/Dealer and Insurance Agent will be notified promptly of any customer
written complaint or notice received at the Service Center of any regulatory
investigation or proceeding or judicial proceeding received by Distributor or
Life Company with respect to Insurance Agent or any Agent which may affect the
issuance of any Contract marketed under this Agreement.
2) Broker/Dealer and Insurance Agent will promptly notify Distributor and Life
Company of any written customer complaint or notice of any regulatory
investigation or proceeding or judicial proceeding received by Broker/Dealer or
Insurance Agent or their Affiliates with respect to themselves, their
Affiliates, or any Agent in connection with any Contract marketed under this
Agreement or any other similar activity in connection with any Contract.
3) In the case of a customer complaint, Distributor, Life Company, Broker/Dealer
and Insurance Agent will cooperate in investigating such complaint and any
response by Broker/Dealer or Insurance Agent to such complaint will be sent to
Distributor and Life Company for approval not less than five business days prior
to its being sent to the customer or regulatory authority, except that if a more
prompt response is required, the proposed response shall be communicated by
telephone or facsimile.
IX. Modification of Agreement
This Agreement supersedes all prior agreements, either oral or written, between
the parties relating to the Contracts and, except for any amendment of Schedule
I and/or Schedule III pursuant to the terms of this Agreement, may not be
modified in any way unless by written agreement signed by all of the parties to
this Agreement.
X. Indemnification
A) Broker/Dealer and Insurance Agent, jointly and severally, shall indemnify and
hold harmless Distributor and Life Company and each person who controls or is
associated with Distributor or Life Company within the meaning of such terms
under the federal securities laws, and any officer, director, employee or agent
of the foregoing, against any and all losses, claims, damages or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any reasonable amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any actual or alleged:
1) violation(s) by Broker/Dealer, Insurance Agent or an Agent of federal or
state securities law or regulations, insurance law or regulation(s), or any rule
or requirement of the NASD;
2) unauthorized use of sales or advertising material, any oral or written
misrepresentations, or any unlawful sales practices concerning the Contracts, by
Broker/Dealer, Insurance Agent or an Agent;
3) claims by the Agents or other agents or representatives of Insurance Agent or
Broker//Dealer for commissions or other compensation or remuneration of any
type;
4) any failure on the part of Broker/Dealer, Insurance Agent, or an Agent to
submit Premiums or applications to Life Company, or to submit the correct amount
of a Premium, on a timely basis and in accordance with this Agreement;
5) any failure on the part of Broker/Dealer, Insurance Agent, or an Agent to
deliver Contracts to purchasers thereof on a timely basis as set forth in
Section IV (E) of this Agreement;
6) any negligent, reckless or intentional act or omission of Broker/Dealer,
Insurance Agent and/or Agent; or
7) a breach by Broker/Dealer or Insurance Agent of any provision of this
Agreement.
This indemnification will be in addition to any liability that Broker/Dealer and
Insurance Agent may otherwise have.
B) Distributor and Life Company, jointly and severally, shall indemnify and hold
harmless Broker/Dealer and Insurance Agent and each person who controls or is
associated with Broker/Dealer or Insurance Agent within the meaning of such
terms under the federal securities laws, and any officer, director, employee or
agent of the foregoing, against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any reasonable amounts paid
in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon a breach by Distributor or Life Company of any
provision of this Agreement. This indemnification will be in addition to any
liability that Distributor and Life Company may otherwise have.
C) After receipt by a party entitled to indemnification ("indemnified party")
under this Section X of notice of the commencement of any action, if a claim in
respect thereof is to be made against any person obligated to provide
indemnification under this Section X ("indemnifying party"), such indemnified
party will notify the indemnifying party in writing of the commencement thereof
as soon as practicable thereafter, provided that the omission to so notify the
indemnifying party will not relieve it from any liability under this Section X,
except to the extent that the omission results in a failure of actual notice to
the indemnifying party and such indemnifying party is damaged as a result of the
failure to give such notice. The indemnifying party will be entitled to
participate in the defense of the indemnified party but such participation will
not relieve such indemnifying party of the obligation to reimburse the
indemnified party for reasonable legal and other expenses incurred by such
indemnified party in defending himself or itself. The indemnification provisions
contained in this Section X shall remain operative in full force and effect,
regardless of any termination of this Agreement. A successor by law of
Distributor or Life Company, as the case may be, shall be entitled to the
benefits of the indemnification provisions contained in this Section X.
XI. Rights, Remedies, etc. Are Cumulative
The rights, remedies and obligations contained in this Agreement are cumulative
and are in addition to any and all rights, remedies and obligations, at law or
in equity, which the parties hereto are entitled to under state and federal
laws. Failure of either party to insist upon strict compliance with any of the
conditions of this Agreement shall not be construed as a waiver of any of the
conditions, but the same shall remain in full force and effect. No waiver of any
of the provisions of this Agreement shall be deemed, nor shall constitute, a
waiver of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver.
XII. Notices
All notices hereunder are to be made in writing and shall be given:
If to Distributor, to If to Life Company, to:
Xxxxx & Xxxxxx, Inc. Business Men's Assurance Company of America
Attention: Attention:
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxx
Chief Compliance Officer Sr. Vice President-Variable & Fixed Products
0000 Xxxx 000xx Xxxxxx, Xxxxx 000 P.O. Box 419458
Xxxxxxx, XX 00000 Xxxxxx Xxxx, XX 00000
If to Broker/Dealer, to If to Insurance Agent, to:
Or notices may be provided to such other address as a party to this Agreement
may hereafter specify in writing. Each such notice to a party shall be either
hand delivered, transmitted by registered or certified United States mail with
return receipt requested or by express courier, and shall be effective upon
delivery.
XIII. Interpretation, Jurisdiction, etc.
This Agreement constitutes the whole agreement between the parties hereto with
respect to the subject matter hereof, and supersedes all prior oral or written
understandings, agreements or negotiations between the parties with respect to
the subject matter hereof. No prior writings by or between the parties hereto
with respect to the subject matter hereof shall be used by either party in
connection with the interpretation of any provision of this Agreement. This
Agreement shall be construed and its provisions interpreted under and in
accordance with the internal laws of the State of Missouri without giving effect
to principles of conflict of laws.
XIV. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or the
breach hereof, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
XV. Setoffs and Chargebacks
Broker/Dealer and Insurance Agent hereby authorize Distributor and Life Company
to set off from all amounts otherwise payable to Broker/Dealer and Insurance
Agent all liabilities of Broker/Dealer, Insurance Agent or Agent. Broker/Dealer
and Insurance Agent shall be jointly and severally liable for the payment of all
monies due to Distributor and/or Life Company that may arise out of this
Agreement or any other agreement between Broker/Dealer, Insurance Agent and
Distributor or Life Company including, but not limited to, any liability for any
chargebacks or for any amounts advanced by or otherwise due Distributor or Life
Company hereunder. All such amounts shall be paid to the Distributor and Life
Company within thirty days of written request therefore. Distributor and Life
Company do not waive any of its other rights to pursue collection of any
indebtedness owed by Broker/Dealer or Insurance Agent or its Agents to
Distributor or Life Company. In the event Distributor or Life Company initiates
legal action to collect any indebtedness of Broker/Dealer, Insurance Agent or
its Agents, Broker/Dealer and Insurance Agent shall reimburse Distributor and
Life Company for reasonable attorney fees and expenses in connection therewith.
XVI. Headings
The headings in this Agreement are included for convenience of reference only
and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
XVII. Counterparts
This Agreement may be executed in two or more counterparts, each of which taken
together shall constitute one and the same instrument.
XVIII. Severability
This is a severable Agreement. In the event that any provision of this Agreement
would require a party to take action prohibited by applicable federal or state
law or prohibit a party from taking action required by applicable federal or
state law, then it is the intention of the parties hereto that such provision
shall be enforced to the extent permitted under the law, and, in any event, that
all other provisions of this Agreement shall remain valid and duly enforceable
as if the provision at issue had never been part hereof.
XIX. Confidential Information and Privacy
A) Confidentiality Defined. For purposes of this Agreement, "Confidential
Information" means any information, in whatever format, that is of value to the
Life Company and/or Distributor and not generally known to its competitors,
including but not limited to names of current or potential customers,
confidential financial and accounting information, business methods and
procedures, business plans, marketing plans and strategies, product and rate
information, policy records, personnel records, training and operational
manuals, any information concerning a customer of the Life Company that is
deemed "nonpublic personal information" as defined under Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, codified as 15 X.X.X.xx. 6801 et seq., and its
implementing regulations as may be amended from time to time ("GLB"),
information that is considered protected health information under the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"), and any other
information designated by the Life Company as confidential. Confidential
Information excludes (i) information that is in the public domain without a
breach of this Agreement and without reliance on the Confidential Information
and (ii) information a party obtains from a third party without breach of this
Agreement.
B) Duties, Rights. The Broker/Dealer and Insurance Agent shall (i) use
Confidential Information only for the purposes set forth in this Agreement; (ii)
ensure that access to and use of Confidential Information is consistent with the
Life Company Privacy Code found at xxx.xxx.xxx and the applicable provisions of
GLB and HIPAA; (iii) not disclose any Confidential Information to any third
party or to any of the Broker/Dealer's or Insurance Agent's employees or
subagents except those who need to know it to enable the Broker/Dealer or
Insurance Agent to provide the services under this Agreement, provided that the
Broker/Dealer and Insurance Agent shall take all reasonable measures (including
binding such persons to confidentiality standards at least as stringent as this
Section XIX) to ensure that Confidential Information is not disclosed or
duplicated in contravention of the provisions of this Agreement by such persons;
and (iv) return to Life Company or destroy (at Life Company's option) all
Confidential Information in the Broker/Dealer or Insurance Agent's possession or
under the Broker/Dealer or Insurance Agent's control when it is no longer
required for the purposes of this Agreement, and confirm to the Life Company in
writing that it has done so. The Broker/Dealer and Insurance Agent each confirms
that he/she has no obligation or contractual relationship that would require the
sharing of Confidential Information with any other party, other than those that
are necessary to perform the services under this Agreement. The Broker/Dealer
and Insurance Agent will allow Life Company or its regulators or its authorized
representatives access to the Broker/Dealer and Insurance Agent's respective
premises at all reasonable times so that Life Company may satisfy itself that
the Broker/Dealer and Insurance Agent are each complying with this Section XIX
and any applicable laws or regulations that apply to the Confidential
Information, including its sharing or use. The Broker/Dealer and Insurance Agent
each acknowledges that all such Confidential Information is owned solely by Life
Company or its customers and shall remain the exclusive property of Life Company
and its customers, and constitutes valuable trade secrets. In no event shall the
Broker/Dealer and Insurance Agent be deemed to have acquired any right or
interest by license or otherwise in or to the Confidential Information.
C) Remedies. The Broker/Dealer and Insurance Agent each acknowledges that any
breach or threatened breach of this Section XIX may result in "irreparable
harm," an injury for which there is no adequate remedy at law, and Life Company
may move for any and all appropriate equitable relief including preliminary and
permanent injunctions in any court of competent jurisdiction to prevent such
breach or threatened breach. The Broker/Dealer and Insurance Agent each agrees
that any such injunctive relief is in addition to all other available remedies,
and does not preclude Life Company from seeking other available remedies. When
moving for injunctive relief, Life Company shall not be required to post bond
or, if required to post bond by court order or other operation of law, shall
only be required to post the minimum or nominal bond permitted.
D) Compelled Disclosure. The Broker/Dealer and Insurance Agent shall each be
entitled to disclose Confidential Information to the extent that it becomes
compelled to do so pursuant to court or administrative order, legal process,
law, or regulation; provided, however, that before disclosure and not more than
three (3) business days from the receipt of the order or legal process or the
Broker/Dealer's or Insurance Agent's decision that a law or regulation compels
the disclosure, it shall notify Life Company of the compelled disclosure and
shall cooperate with Life Company in seeking a confidentiality agreement,
protective order, or other protection of the confidentiality of the Confidential
Information.
E) Unauthorized Acts. The Broker/Dealer and Insurance Agent each shall: (i)
notify Life Company promptly of any material, unauthorized possession, use or
knowledge, or attempt thereof, of the Confidential Information by any person or
entity which may become known to it; (ii) promptly furnish to Life Company full
details of the unauthorized possession, use or knowledge, or attempt thereof,
and assist Life Company in investigating or preventing the reoccurrence of any
unauthorized possession, use or knowledge, or attempt thereof, of Confidential
Information; (iii) use reasonable efforts to cooperate with Life Company in any
litigation and investigation against third parties deemed necessary by Life
Company to protect its proprietary rights; and (iv) promptly use all reasonable
efforts to prevent a reoccurrence of any such unauthorized possession, use or
knowledge of Confidential Information. The Broker/Dealer and Insurance Agent
shall each bear the cost it incurs as a result of compliance with this Section
XIX. E).
F) Survival. The terms of this Section XIX shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed.
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA [Broker/Dealer]
By: ____________________________________ By: ____________________________________
Name: ____________________________________ Name: ____________________________________
Title: ____________________________________ Title: ____________________________________
XXXXX & XXXXXX, INC. [Insurance Agent]
By: ____________________________________ By: ____________________________________
Name: ____________________________________ Name: ____________________________________
Title: ____________________________________ Title: ____________________________________
