SELLING AGREEMENT
This Selling Agreement ("Agreement") is made effective as of the ____ day of
____________, ______, by and among Liberty Life Insurance Company, a South
Carolina corporation ("Life Company"); JBS Investment Group, LLC, a North
Carolina limited liability company ("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 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 be construed to cause
Broker/Dealer, Insurance Agent, the Agents or any agents or representatives
of Broker/Dealer or Insurance Agent to be employees of Distributor or Life
Company in connection with any activity under this Agreement.
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 to the extent necessary 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 and
insurance training, suitability review, 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 and related
materials to Insurance Agent, Insurance Agent shall promptly deliver such
Contract and related materials 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 and related materials will
be delivered by Insurance Agent to the purchaser of such Contract within
five calendar days for purposes of limiting the Life Company's investment
risk exposure in those states requiring a refund of purchase payment under
such Contracts. 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 be solely responsible under
applicable tax laws for the reporting of compensation paid to Agents.
I) 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.
J) 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.
K) 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
further agree to fully cooperate and assist Life Company in implementing
and carrying out its anti-money laundering program as applicable to the
Broker/Dealer's and Insurance Agent's activities under this Agreement. Such
cooperation and assistance shall include but not be limited to providing
Life Company with requested customer information, reporting suspicious
activities to Life Company, following customer identification procedures,
providing the appropriate anti-money laundering training of agents and
employees and providing Life Company with requested certification and
information regarding such training.
L) 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
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. Neither
Broker/Dealer nor Insurance Agent shall use or authorize the use of any
such materials without the prior written consent of Distributor and Life
Company.
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 Broker/Dealer or Insurance
Agent as applicable, 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 Broker/Dealer or Insurance
Agent. Broker/Dealer or Insurance Agent shall be responsible for the
payment of any commission or consideration of any kind to Agents. Neither
Broker/Dealer nor Insurance Agent shall have the right to withhold or
deduct any commission from any Premiums which it may collect unless and
only to the extent that the Schedules attached to this Agreement permit
Broker/Dealer or Insurance Agent to net its commissions against Premiums
collected. Neither Broker/Dealer nor Insurance Agent shall have any
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 without the prior written consent of the
parties hereto except that the Distributor may assign this Agreement to another
entity appropriately registered with the NASD upon receiving the written consent
of Life Company and 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 those set forth in Sections
VI, VIII, X, XIV, XV, XVII 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 is 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 as specifically provided for
under 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. 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: If to Life Company:
JBS Investment Group, LLC Liberty Life Insurance Corporation
Attention: Attention:
Xxxxxxx X. Xxxx Xxxxxxx X. Xxxxxxxxx
8320 University Executive Park Drive, Suite 110 Sr. Vice President-Variable & Fixed Products
Xxxxxxxxx, XX 00000 X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000
(Provide both Broker/Dealer and Insurance Agent's legal name, key contact
person's name, company address and corporate tax identification number. If they
are the same entity, state that fact.)
If to Broker/Dealer: If to Insurance Agent:
(Name) (Contact)
(Address)
(TIN)
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
Except as set forth in Section XVII hereof, 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. This
Agreement shall be governed by the laws of the state of Missouri.
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. Disclosure of Relationship and Compensation
If and as required by applicable law, Broker/Dealer and Insurance Agent shall
disclose in writing to each applicant for a Life Company product, Broker/Dealer
and Insurance Agent's relationship with Life Company and the compensation, and
anything of value, Broker/Dealer, Insurance Agent and any Agent receive from
Life Company for the services performed under this or any other agreement. Life
Company reserves the right to disclose to purchasers of Life Company products,
and potential purchasers of such products, details regarding compensation, and
anything of value, it, and any Life Company affiliate, may pay to Broker/Dealer,
Insurance Agent and any Agent, or any of their respective affiliates, under this
or any other agreement.
XVII. Non Interference
Broker/Dealer and Insurance Agent agree that together or separately, they shall
not directly or indirectly (i) induce or urge any Contract owner to lapse,
surrender or otherwise terminate any Contract or induce or urge any
broker/dealer, insurance agent or agent to terminate any relationship with the
Life Company. In the event this provision is violated and without limitation of
Life Company's other remedies, all rights to compensation under this Agreement
will cease immediately and Broker/Dealer and Insurance Agent will be liable for
any damages incurred by Life Company. Broker/Dealer and Insurance Agent agree
that money damages for breach of this provision will be inadequate and the Life
Company is entitled to seek injunctive relief to prevent further breaches
hereof. Life Company may seek that injunctive relief, coupled with any claim by
Life Company for damages, in any state or federal district court in South
Carolina, and Broker/Dealer and Insurance Agent agree that those courts have
personal jurisdiction over Broker/Dealer and Insurance Agent for the purpose of
any such action. Any claim for injunctive relief and damages pursuant to this
paragraph shall not be subject to the Arbitration provision of this Contract.
XVIII. 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.
XIX. 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 U.S.C. ss. 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 provided it is obtained without breach of this Agreement and was
disclosed by the third party without a violation of an independent
obligation of confidentiality or applicable law of which the Broker/Dealer
or Insurance Agent is aware.
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 as Life
Company will provide upon request and the applicable provisions of
federal and state privacy laws and related regulations; (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).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed.
LIBERTY LIFE INSURANCE COMPANY [Broker/Dealer]
By: ____________________________________ By: ____________________________________
Name: ____________________________________ Name: ____________________________________
Title: ____________________________________ Title: ____________________________________
JBS INVESTMENT GROUP, LLC [Insurance Agent]
By: ____________________________________ By: ____________________________________
Name: ____________________________________ Name: ____________________________________
Title: ____________________________________ Title: ____________________________________
SCHEDULE I
Variable Product Listing and Compensation
SCHEDULE II
Operational Requirements
SCHEDULE III (if attached)
Fixed Product Listing and Compensation
