See All of This Company's Exhibits
EX-99.3(C)
4
ex993c.txt
MARKETING ORGANIZATION AGREEMENT
MARKETING ORGANIZATION AGREEMENT
SECURITY BENEFIT LIFE INSURANCE COMPANY
SECURITY DISTRIBUTORS, INC.
PRODUCT AUTHORIZATION
Fixed Products |_|
Variable Products |_|
Retirement Plan Products |_|
MARKETING ORGANIZATION:
This Agreement is entered into by and among Security Benefit Life Insurance
Company, a Kansas life insurance company ("SBL"), Security Distributors, Inc.
("SDI"), and the undersigned, referred to herein as the "Marketing
Organization." This Marketing Organization Agreement is also entered into with
respect to such other Products (as defined below) as SDI, or one or more of its
affiliates, may from time to time make available hereunder by inclusion of an
appropriate commission schedule.
I. APPOINTMENTS AND DUTIES
A. APPOINTMENT. Subject to the terms and conditions of this Agreement,
Marketing Organization is appointed to solicit, and to recommend for
appointment Agents and/or Representatives (referred to herein as
"Marketer(s)") to solicit applications for the fixed annuity contracts
("Fixed Products"), variable annuity and variable life insurance
contracts ("Variable Products") and mutual fund retirement plan
products ("Retirement Plan Products") (collectively, the "Products")
more specifically described in the Commission Schedule(s) attached
hereto from time to time and incorporated by reference, to deliver the
Fixed and Variable Product contracts, to collect the initial premium
or payment on the Products and remit the same to SDI, or to another
entity as SDI may direct, and to service the business.
Marketing Organization hereby accepts such appointment and confirms
that it will abide by the terms and conditions of this Agreement and
any sales manuals and/or rules and practices of SDI and/or SBL.
Marketing Organization will endeavor to promote the interests of SBL
and SDI and those mutual interests of Marketing Organization, SBL and
SDI as contemplated by this Agreement and shall at all times conduct
itself, and insure that its employees and Marketers conduct themselves
so as not to adversely affect the business reputation or good standing
of either the Marketing Organization, SBL or SDI.
B. SALES FORCE. Marketing Organization shall have the authority to
recruit, train and supervise Marketers for the sale of the Products.
Appointment of any Marketer for the Sale of Fixed and Variable
Products shall be subject to prior approval of SBL. SBL and SDI
reserve the right to require termination of any Marketer's right to
sell any of the Products and to cancel the appointment of any
Marketer. Marketing Organization shall be responsible for any Marketer
appointed hereunder complying with the terms, conditions, and
limitations as set forth in this Agreement and any sales manuals
and/or rules and practices of SBL and/or SDI.
With respect to sales of Fixed Products, unless otherwise agreed in
writing by the parties, any and all agreements with Marketers shall be
made directly with SBL in writing on SBL's form and shall not become
effective until they are approved and executed by SBL and the Marketer
is licensed in accordance with Section III of this Agreement.
Marketing Organization shall not have authority to modify or amend any
such agreements. With respect to sales of Variable Products, any and
all agreements with Marketers shall be made between the Marketing
Organization and its Marketers, provided however, that SBL reserves
the right to require any Marketer to sign an agreement acknowledging
that no compensation is payable by SBL to the Marketer.
C. INDEPENDENT CONTRACTOR. Marketing Organization shall be an independent
contractor and nothing contained herein shall be construed as creating
the relationship of employer-employee between SBL or SDI and Marketing
Organization. Marketing Organization will be acting as an independent
contractor only, and not as a partner, associate, or affiliate of SBL
or SDI. Marketing Organization will be free to exercise its own
judgment as to the time and manner of performing the services
authorized by this Agreement subject to such rules and regulations as
may be adopted from time to time by SBL and/or SDI.
D. LIMITATIONS OF AUTHORITY. Marketing Organization's authority shall
extend no further than as is stated in this Agreement. Marketing
Organization shall not (1) make, alter, modify, waive or change any
question, statement or answer on any application for any Product, the
terms of any receipt given thereon, or the terms of any Product; (2)
extend or waive any provision of any Product or the time for payment
of premiums or other payments; (3) guarantee dividends; (4) deliver
any policy for the Fixed or Variable Products unless the applicant is
at the time in insurable condition; (5) incur any debts or liability
for or against SBL or SDI; or (6) receive any money for SBL or SBL
except as herein stated.
E. COLLECTION OF MONEY. Marketing Organization is not authorized to
accept any premium or other payment for SBL or SDI except initial
Product premiums or payments, unless SBL or SDI provides otherwise in
writing. All customer checks for Fixed and Variable Products should be
made payable directly to Security Benefit Life Insurance Company and
for all other Products should be made payable to SDI, unless SDI
directs otherwise. Receipts for premiums with respect to Fixed and
Variable Products must be on the forms furnished by SBL for that
purpose. Marketing Organization shall immediately remit to SBL or SDI
as applicable, all money received or collected on SBL or SDI's behalf,
and such money shall be considered as held in trust by Marketing
Organization. Neither SBL nor SDI will accept premium or other
payments in respect of the Products in the form of checks drawn on
Marketing Organization or Marketer accounts.
F. RECORDS. Marketing Organization agrees to maintain proper records and
accounts of business transacted under this Agreement, including but
not limited to, records of all written sales proposals made,
applications taken, money collected, policies issued and delivered,
and all service to Product owners on SBL or SDI's behalf. All such
records shall be made available to SBL, SDI or their representatives,
with or without prior notice, during business hours.
II. COMPENSATION
A. COMPENSATION TO MARKETING ORGANIZATION. As full compensation, SDI will
pay Marketing Organization or its affiliated insurance agency (if
applicable) commissions as described in the attached Commission
Schedule(s) for Products sold by Marketers assigned to Marketing
Organization. There shall be no additional compensation or
reimbursement to Marketing Organization for services performed or
expenses incurred. Marketing Organization shall be responsible for and
shall pay all expenses Marketing Organization incurs in the
performance of this Agreement. Further, SDI may amend any Commission
Schedule at any time by giving Marketing Organization written notice
of such change. Any changes SDI may make to the Commission Schedule
will apply only to those policies issued on or after the effective
date of the changes.
The rate of commissions or right to receive compensation on any
Product (1) not listed in this Agreement, (2) requiring special
underwriting, or (3) obtained through a lead furnished by SBL or SDI,
shall be governed by SBL and SDI's rules and practices in effect at
that time and shall eventually be covered by a separate agreement
between Marketing Organization, SBL and SDI, by written amendment to
this Agreement, or by written notice to Marketing Organization.
SBL pays commissions related to Fixed Products and pays commissions
related to Variable Products on behalf of SDI.
B. COMPENSATION TO MARKETERS. This Agreement is not intended to benefit
in any manner whatsoever the Marketers or any other entity as a
third-party beneficiary. With respect to sales of Fixed Products,
payment of compensation by SBL to Marketers will be made only pursuant
to the terms of a separate written Agreement between SBL and Marketer.
With respect to the sales of Variable Products, SBL will pay no
compensation to Marketers; payment of compensation to Marketers, if
any, will be made only pursuant to the terms of a separate written
Agreement between the Marketing Organization and Marketer.
C. PROVISIONS RELATING TO COMPENSATION. Neither Marketing Organization
nor any Marketer assigned to Marketing Organization shall withhold
compensation from any premiums or contributions submitted to SBL or
SDI. No commissions will be payable on premiums or contributions which
shall be refunded for any reason, and Marketing Organization shall
refund to SBL or SDI as applicable any commission paid to Marketing
Organization on any such premiums or contributions. SBL shall not,
under any circumstances whatsoever, pay or allow any rebate of
commissions in any manner, directly or indirectly, that violates state
insurance law.
III. COMPLIANCE
A. GENERAL REQUIREMENTS. Marketing Organization agrees to abide by all
applicable local, state and federal laws and regulations, as well as
the rules and regulations of the Financial Industry Regulatory
Authority (FINRA) and the Securities and Exchange Commission (SEC) in
conducting business under this Agreement. Marketing Organization shall
insure that all of its Marketers comply with all such rules, laws, and
regulations. Marketing Organization agrees to comply with, and to
cause their Marketers to comply with, any sales manuals and/or
policies, procedures, rules and practices of SBL and/or SDI relating
to the Products, privacy, Marketer conduct and similar matters and
provided to Marketing Organization, as these sales manuals and/or
policies, procedures, rules and practices of SBL and/or SDI are now in
effect or may be amended or established in the future by SBL or SDI in
its sole discretion. Marketing Organization agrees to notify SDI
immediately in writing if it or any Marketer fails to comply with any
applicable local, state or federal law or regulation (including FINRA
and SEC rules), or SBL and/or SDI's sales manuals and/or policies,
procedures, rules and practices.
B. SUITABILITY. Marketing Organization agrees to abide by all applicable
state and federal laws and regulations concerning suitability.
Marketing Organization further agrees to abide by FINRA rules and
interpretive guidance regarding suitability, as applicable. Marketing
Organization, through a senior manager who has responsibility for
suitability functions, shall provide upon SBL's request, an annual
certification certifying that Marketing Organization is performing
suitability functions as required by applicable state and federal laws
and regulations and FINRA Rules. Marketing Organization agrees to
allow SBL to perform suitability audits from time to time. Suitability
audits may be performed at any of Marketing Organization's sites, via
electronic communication, or other means, as deemed appropriate by
SBL. If an audit is conducted at Marketing Organization's site(s),
Marketing Organization agrees to allow SBL reasonable access to the
building, and books and records as requested by SBL or its
representatives.
WITH RESPECT TO SALES OF VARIABLE PRODUCTS AND RETIREMENT PLAN
PRODUCTS: (1) Marketing Organization hereby confirms that it is a
member in good standing of FINRA, and further agrees to notify SDI if
it ceases to be a member of FINRA, (2) Marketing Organization agrees
to abide by the applicable Rules of FINRA, which rules are
incorporated herein as if set forth in full, (3) Marketing
Organization represents that the signing of this agreement is a
representation to SDI that Marketing Organization is a properly
registered Broker/Dealer under the Securities Exchange Act of 1934,
and (4) Marketing Organization shall insure that all Marketers
recruited by Marketing Organization to sell the Variable Products and
Retirement Plan Products shall be duly registered pursuant to
applicable state and federal securities laws and regulations and shall
notify SDI if any Marketer ceases to be so registered.
Marketing Organization will be responsible to secure and provide to
SBL and/or SDI adequate proof of any licenses, securities
registration, bonds or other requirements or qualifications as may be
required by SBL and/or SDI or the state or states where Marketing
Organization and its affiliated insurance agency (if applicable) is
authorized to solicit insurance and securities.
C. SUPERVISION OF MARKETERS. Marketing Organization shall recruit, train
and supervise Marketers for the sale of the Products. Marketing
Organization shall be responsible for any Marketer appointed hereunder
complying with the terms, conditions, and limitations as set forth in
this Agreement and any sales manuals and/or policies, procedures,
rules and practices of SBL and/or SDI. Marketing Organization shall
supervise its Marketers and be responsible for their training and
compliance with applicable insurance laws and regulations, and if any
act or omission of a Marketer or employee of Marketing Organization is
the proximate cause of any loss, claim, damage, liability or expense
(including reasonable attorneys' fees) to SBL and/or SDI, Marketing
Organization shall be liable therefor.
Marketing Organization shall supervise its Marketers and be
responsible for their training and compliance with applicable federal
and state securities laws and regulations and the rules of FINRA, and
if any act or omission of a Marketer or employee of Marketing
Organization is the proximate cause of any loss, claim, damage,
liability or expense (including reasonable attorneys' fees) to SBL
and/or SDI, Marketing Organization shall be liable therefor. Marketing
Organization shall insure that only Marketers solicit applications for
the Products. Neither SBL nor SDI shall have any responsibility for
the supervision, training or compliance with any law or regulation of
any Marketer or any employee of Marketing Organization, and nothing in
this Agreement shall be deemed to make such a Marketer or employee an
agent or employee of SBL or SDI.
Marketing Organization shall (i) supervise Marketers' compliance with
all applicable suitability requirements under state insurance laws and
regulations and (ii) provide adequate training to insure that
Marketers have thorough knowledge of each Fixed and Variable Product
and the ability to make appropriate product presentations and
suitability determinations in compliance with applicable law.
Marketing Organization also shall (i) supervise Marketers' compliance
with all applicable suitability requirements under federal and state
securities laws and regulations and FINRA rules and (ii) provide
adequate training to insure that Marketers have thorough knowledge of
each Product and the ability to make appropriate product presentations
and suitability determinations in compliance with applicable law.
Marketing Organization shall not, and shall cause the Marketers not
to, recommend the purchase of a Product to a prospective purchaser
unless it has reasonable grounds to believe that such purchase is
suitable for the prospective purchaser and is in accordance with
applicable rules and regulations of any regulatory authority,
including, in the case of Variable and Retirement Plan Products, the
SEC and FINRA. Marketing Organization, in submitting an application
for a Product, shall be deemed to have warranted to SBL and/or SDI,
that it has made a determination of suitability based on information
concerning the prospective purchaser's investment objectives, risk
tolerance, need for liquidity, and financial and insurance situation
and needs, or on such other factors that Marketing Organization deems
appropriate under the circumstances and in compliance with applicable
law.
If a Marketer performs any unauthorized transaction with respect to a
Product, fails to submit to the supervision of or otherwise meet the
rules and standards of Marketing Organization, or fails to hold any
required license, appointment, registration or association with
Marketing Organization, Marketing Organization immediately shall
notify SBL and SDI in writing and act to terminate the sales
activities of such Marketer relating to the Products.
Upon request by SBL and/or SDI, Marketing Organization shall furnish
appropriate records or other documentation to evidence the diligent
supervision of Marketers by Marketing Organization.
D. LICENSING. Marketing Organization agrees that neither it nor the
Marketers shall solicit or submit applications for any of the Fixed or
Variable Products unless Marketing Organization and its Marketers are
properly licensed under all applicable state insurance laws. Marketing
Organization shall be responsible for each Marketer becoming so
licensed and shall notify SBL if any Marketer ceases to be so
licensed. With respect to sales of Variable and Retirement Plan
Products: (1) Marketing Organization hereby confirms that it is a
member in good standing of FINRA and agrees to notify SDI if it ceases
to be a member of FINRA, (2) Marketing Organization agrees to abide by
the applicable FINRA Rules, which rules are incorporated herein as if
set forth in full, and (3) Marketing Organization shall insure that
all Marketers are duly registered pursuant to applicable state and
federal securities laws and regulations and shall notify SDI if any
Marketer ceases to be so registered.
Marketing Organization shall provide to SBL and/or SDI adequate proof
of any licenses, securities registration, bonds or other requirements
or qualifications as may be required by SBL and/or SDI or the state or
states where Marketing Organization is authorized to solicit insurance
and/or securities.
E. ANTI-MONEY LAUNDERING. Marketing Organization agrees to abide by all
applicable federal laws and regulations regarding anti-money
laundering ("AML"), including the "know your customer" requirements.
Marketing Organization acknowledges that SBL expects Marketing
Organization to perform all required customer identification under
SBL's AML program and any suspicious activity monitoring under SBL's
AML program where Marketing Organization is in a position to monitor
for suspicious activity. Marketing Organization shall certify to SBL
at least annually that it will perform such customer identification
responsibilities and has implemented an AML program, and Marketing
Organization will provide such other periodic AML-related
certifications as SBL may request. In addition, Marketing Organization
will (1) notify SBL of any customer identification or suspicious
activity issues it identifies; (2) provide or arrange for the
provision of AML training for appropriate personnel of Marketing
Organization; and (3) allow reasonable access for SBL's examiners
(including outside examiners retained by SBL) and appropriate
government examiners to assess Marketing Organization's performance of
the above obligations.
If Marketing Organization relies on a registered investment adviser to
perform certain procedures required by the customer identification
rules, Marketing Organization must ensure that: (1) such reliance is
reasonable under the circumstances; (2) the investment adviser is
regulated by a federal functional regulator (i.e., the SEC); and (3)
the investment adviser and the Marketing Organization enter into a
contract requiring the investment adviser to certify to Marketing
Organization no less frequently than annually that it has implemented
an AML program, and that it will perform (or its agents will perform)
specified requirements of Marketing Organization's customer
identification program. Further, to the extent requested by SBL,
Marketing Organization shall provide to SBL copies of certifications
received by the Marketing Organization from investment advisers it is
relying upon to meet its customer identification responsibilities .
F. PRINTED MATTER. SDI will furnish Marketing Organization all
prospectuses, reports, applications and other printed matter necessary
to conduct the business anticipated hereunder with respect to the
Products. Advertising material of any nature not supplied by SDI shall
be used by Marketing Organization only after Marketing Organization
has received SDI's written approval. Likewise, Marketing Organization
may use SDI's name and trademark, or those of any affiliated
companies, only with SDI's written approval.
IV. SBL'S RIGHT OF ACTION
A. CHANGES. SBL and SDI may at any time and from time to time (1) upon
reasonable notice to Marketing Organization, change or modify this
Agreement, (2) modify or amend any prospectus, policy form, or
contract, (3) change sales charges, (4) modify or alter the conditions
or terms under which any Product may be sold or regulate its sale in
any way, (5) discontinue or withdraw any Product from any state, or
(6) cease doing business in any state.
B. RIGHTS OF REJECTION AND SETTLEMENT. SBL and SDI reserve the right to
reject any application or refund any money submitted by Marketers
assigned to Marketing Organization. In the event of such rejection or
refund, Marketing Organization's commission on such shall be refunded
as described previously by being charged against Marketing
Organization's earnings or, upon demand, by payment directly to SBL or
SDI, as applicable. It is the intention of the parties to this
Agreement that Marketing Organization shall be entitled to receive
commissions only upon premiums or contributions received in cash and
retained by issuer of the Product.
C. RIGHT OF OFFSET OF INDEBTEDNESS. Any advance, loan, annualization of
compensation, or extension of credit from SBL or SDI to Marketing
Organization, or any loss or liability incurred by SBL or SDI as a
result of the actions of Marketing Organization or its affiliated
insurance agency (if applicable) shall constitute a general
indebtedness of Marketing Organization to SBL or SDI. The entire
indebtedness, as shown in SBL or SDI's ledger accounts, may be deemed
due and payable at any time and SBL and SDI may exercise any rights or
remedies to collect such indebtedness, including but not limited to,
charging to Marketing Organization all attorney's fees or other
collection expenses, as permitted by law.
SBL and SDI, respectively, may deduct any amounts Marketing
Organization owes SBL or SDI, now or in the future, as a result of
this or any other contract with SBL and/or SDI, from any compensation
due Marketing Organization. Marketing Organization hereby assigns,
transfers and sets over to SBL and SDI any monies that from time to
time may become due to Marketing Organization from SBL or SDI under
this Agreement or otherwise to secure any debt to SBL or SDI.
V. TERMINATION
A. VOLUNTARY TERMINATION. The parties hereto may terminate this
Agreement, without stating any cause, by mailing to the other party at
their last known address a notice of termination which shall be
effective fifteen days from mailing.
B. AUTOMATIC TERMINATION. This Agreement terminates automatically (1) if
Marketing Organization is an individual, upon Marketing Organization's
death, (2) if a partnership, upon the death of any partner or change
in the partners composing the firm, or dissolution of the partnership
for any reason, (3) if a corporation, upon Marketing Organization's
dissolution or disqualification to perform the duties anticipated
hereunder, (4) upon revocation, termination, suspension or nonrenewal
of Marketing Organization's securities registration or insurance
licenses by any state in which Marketing Organization is required by
law to maintain such a license in order to perform its duties under
this Agreement, (5) with respect to the Variable and Retirement Plan
Products, upon Marketing Organization's ceasing to be a FINRA
registered broker/dealer in good standing (this includes any
suspension of Marketing Organization's membership), or (5) upon
Marketing Organization's filing a petition for bankruptcy or one being
filed for Marketing Organization, upon Marketing Organization being
adjudged bankrupt, or upon Marketing Organization's executing a
general assignment for the benefit of creditors.
C. TERMINATION FOR CAUSE. Marketing Organization's rights under this
Agreement, including the right to any further payment of any type of
compensation, either during or after the termination of this
Agreement, shall automatically and completely cease if any of the
following occur at any time: (1) Marketing Organization violates any
of the terms hereof, (2) Marketing Organization violates any law or
regulation relating to the activities anticipated hereunder, (3)
Marketing Organization induces or attempts to induce any Marketer
and/or other person under contract with SBL and/or SDI to terminate
the contractual relationship or cease doing business or producing for
SBL and/or SDI, (4) Marketing Organization initiates or induces any
misappropriation or commingling of the funds of Marketing Organization
and SBL or SDI's funds, or (5) Marketing Organization engages in any
fraudulent act or misrepresentation. In determining cause for
termination, SBL and SDI shall use their sole discretion and shall
notify Marketing Organization in writing of their decision.
D. RETURN OF SBL AND SDI PROPERTY. Upon termination of this Agreement,
Marketing Organization agrees to return any equipment, supplies,
printed materials or other property, including, but not limited to,
customer lists and customer records SBL and/or SDI have furnished
Marketing Organization. Marketing Organization acknowledges that any
customer lists or records in Marketing Organization's possession are
SBL and SDI's property, and that SBL and SDI have a continuing
proprietary interest in the lists and records relating to the
customer.
VI. THIRD PARTY COMPLAINTS AND LITIGATION
A. NOTIFICATION AND COOPERATION. SBL, SDI and Marketing Organization will
promptly notify the other if either of them becomes aware of any
arbitration, litigation, judicial proceeding, insurance department or
other governmental agency inquiry or complaint, regulatory or
administrative investigation or proceeding, or customer complaint or
demand, which directly or indirectly involves the rights and
obligations of the parties under this Agreement. SBL, SDI and
Marketing Organization each agree to cooperate fully with the other
with respect to any matter referred to in this Section VI.
B. DEFENSE OF ACTIONS. If any legal action is brought by a third party
against SBL, SDI and/or Marketing Organization, which is based in
whole or in part on any alleged act, fault or failure of Marketing
Organization in connection with this Agreement, SBL and SDI may
require Marketing Organization to defend them in such action, or, SBL
and SDI may defend any such action and expend such sums, including
attorneys' fees, to be reimbursed by Marketing Organization in
accordance with Section VI.E. below.
C. SERVICE OF PROCESS. Marketing Organization shall transmit to the
attention of SBL's Legal Counsel at One Security Benefit Place,
Topeka, Kansas 66636, by certified mail within 24 hours after receipt,
any paper served upon Marketing Organization in connection with any
proceeding, hearing or action, whether legal or otherwise, by or
against SBL and/or SDI. Any failure on Marketing Organization's part
to comply with this provision which causes additional loss or expense
to SBL or SDI shall be reimbursed by Marketing Organization to SBL or
SDI as applicable.
D. SETTLEMENT. SBL and SDI, respectively, have the right to settle any
claim against SBL and SDI, and any claim made against SBL, SDI and
Marketing Organization jointly, arising out of this Agreement or any
other agreement between SBL or SDI and Marketing Organization now or
hereafter existing, and SBL or SDI's determination as to any such
matter will be final and binding. In any action brought jointly
against SBL and/or SDI and Marketing Organization which is based in
whole or in part on any alleged act, fault or failure of Marketing
Organization, Marketing Organization shall not settle such action or
any portion thereof except with the express, written consent of SBL
and/or SDI.
E. INDEMNIFICATION. Marketing Organization shall indemnify and hold
harmless SBL, SDI and their affiliates from any liability, loss, cost,
claim or damages caused by the negligence or misconduct of Marketing
Organization, its affiliated insurance agency (if applicable),
Marketers and/or either of their officers, directors and employees.
Marketing Organization shall reimburse SBL, SDI and their affiliates
for any legal or other expenses reasonably incurred by SBL, SDI or
their affiliates in connection with their investigation and defense of
any such loss, cost, claim, damage or liability, or of any proceeding
or action resulting from those matters.
VII. GENERAL PROVISIONS
A. CONFIDENTIALITY. This Confidentiality provision shall survive the
termination of this Agreement.
1. Definition. "Confidential Information" for the purposes of this
Agreement shall include all information of SBL and/or any of its
affiliates to which Marketing Organization has had or will have
access, whether in oral, written, electronic, graphic or
machine-readable form, including without limitation business or
financial information, customer information, customer names,
operations or systems manuals, decision processes,
specifications, profiles, system and management architectures,
diagrams, graphs, models, sketches, technical data, research,
plans, strategies, forecasts, forecast assumptions, business
practices, marketing information and material, proprietary ideas,
concepts, know-how, methodologies and all other information
related to SBL's business and/or the business of any of its
affiliates. Confidential Information shall also include all
information of a third party to which SBL and/or any of its
affiliates have access and to which Marketing Organization or any
of its Representatives (as defined below) has had or will have
access, incorporating any of the information described herein.
Confidential Information expressly includes "NPI." NPI has the
meaning ascribed to "Nonpublic Personal Information" in Title V
of the Gramm-Leach-Bliley Act of 1999 or any successor federal
statute, and the rules and regulations thereunder, all as may be
amended or supplemented from time to time (collectively,
"Applicable Law") as it relates to SBL or its affiliates'
customers. Marketing Organization shall keep, and shall cause its
Representatives to keep, NPI confidential and may use and
disclose NPI only as necessary to carry out those specific
aspects of the business purpose for which the NPI is/was
disclosed to Marketing Organization or the Marketers and in
accordance with this Agreement and Applicable Law. SBL shall
keep, and shall cause its employees, officers, and directors to
keep, NPI confidential and may use and disclose NPI only as
necessary to carry out those specific aspects of the business
purpose for which the NPI is/was disclosed to SBL and in
accordance with this Agreement and Applicable Law. Confidential
Information also includes non-public personal or financial
information as defined by any applicable state or federal laws,
rules or regulations. Such definitions include, but are not
limited to, information protected under applicable state
insurance or state securities laws, as they may be amended from
time to time.
Confidential Information shall not include information that: (a)
is in the public domain at the time of its use or disclosure to
Marketing Organization or the Marketers through no fault of
Marketing Organization or its Representatives; (b) was lawfully
in the possession of or demonstrably known by Marketing
Organization or the Marketers prior to its receipt from SBL or
any of its affiliates; (c) is independently developed by
Marketing Organization or the Marketers without use of or
reference to the Confidential Information; or (d) becomes known
to Marketing Organization lawfully from a third party that, to
Marketing Organization's knowledge, is not subject to an
obligation of confidentiality to SBL or any of its affiliates.
2. Rights and Responsibilities. Marketing Organization represents,
warrants and covenants that Marketing Organization is capable,
has implemented and shall maintain appropriate physical,
electronic and procedural safeguards of the Confidential
Information that comply with state and federal laws and
regulations, and that meet privacy obligations hereunder.
Marketing Organization shall maintain the confidentiality of the
Confidential Information using procedures reasonably calculated
to comply with state and federal laws and regulations, as adopted
and amended. Marketing Organization shall exercise no less than a
reasonable degree of care to not: (a) transfer, disclose, allow
access to or duplication of any of the Confidential Information
to or by any third party; (b) use any of the Confidential
Information for any purpose other than in connection with the
business purpose for which it was disclosed; or (c) take any
other action with respect to the Confidential Information
inconsistent with the confidential and proprietary nature of such
information, without prior written permission from SBL.
Marketing Organization may disclose the Confidential Information
to the officers, directors, employees, Marketers, consultants,
attorneys, accountants, agents or other representatives (each, a
"Representative") of Marketing Organization who have a need to
know such Confidential Information solely in connection with the
business purpose for which it was disclosed, provided that
Marketing Organization shall: (i) cause such Representatives to
comply with this Agreement; and (ii) assume full responsibility
for any breach of this Agreement caused by any such
Representatives. Marketing Organization shall promptly notify SBL
of any disclosure or use of any Confidential Information by any
of their Representatives in breach of this Agreement. SBL
reserves the right, without an obligation to do so, to review
Marketing Organization's policies and procedures used to maintain
the confidentiality of Confidential Information.
If Marketing Organization is required to disclose any of the
Confidential Information pursuant to a subpoena, court order,
statute, law, rule, regulation or other similar requirement (a
"Legal Requirement"), Marketing Organization shall, to the extent
permitted by law, provide prompt notice of such Legal Requirement
to SBL so it may seek an appropriate protective order or other
appropriate remedy or waive compliance with the provisions of
this Agreement. If SBL is not successful in obtaining a
protective order or other appropriate remedy and Marketing
Organization is, in the opinion of its counsel, compelled to
disclose such Confidential Information under pain of liability
for contempt of court or other censure or liability, or if SBL
waives compliance with the provisions of this Agreement in
writing, then Marketing Organization may disclose, without
liability hereunder, such Confidential Information in accordance
with, but solely to the extent necessary, in the opinion of its
counsel to comply with, the Legal Requirement.
Marketing Organization acknowledges that a breach of its
obligations under this section on Confidentiality shall result in
irreparable and continuing damage to SBL for which monetary
damages may not be sufficient, and agrees that in addition to
SBL's other rights and remedies hereunder or at law, SBL shall be
entitled to injunctive and/or other equitable relief, and such
further relief as may be awarded by a court of competent
jurisdiction.
32-94823-00
B. WAIVER. SBL or SDI's forbearance or failure to exercise any rights
hereunder or insist upon strict compliance herewith shall not
constitute a waiver of any right, condition, or obligation of
Marketing Organization under this Agreement.
C. PRIOR AGREEMENTS. This Agreement shall supersede any and all prior
agreement(s) between Marketing Organization and SBL and/or SDI in
relation to sales of Products after this Agreement becomes effective;
it being understood, however, that all obligations to SBL and/or SDI
previously incurred or assumed by Marketing Organization and liens
created in connection therewith still exist and shall attach hereto.
D. ASSIGNMENT. Neither this Agreement nor any of the benefits to accrue
hereunder shall be assigned or transferred, either in whole or in
part, without SBL and SDI's prior written consent. Any assignments
shall be subject to a first lien to SBL and SDI for any indebtedness
owed to SBL or SDI, respectively.
E. NOTICES. All notices required or permitted to be given under this
contract shall be in writing and shall be delivered personally or
mailed to an officer of the party receiving such notice at its home
office at the address set forth above.
F. GOVERNING LAW. This contract shall be construed to be in accordance
with the laws of the State of Kansas without regard to its conflicts
of law doctrine.
G. ENTIRE AGREEMENT. The foregoing provisions, the attached Commission
Schedules and bulletins issued by SBL or SDI in connection with this
Agreement constitute the entire agreement between the parties, and no
party shall be bound by any other promise, agreement, understanding or
representation unless it is made by an instrument in writing, signed
by all of the parties or is in the form of a written notice from SBL
and SDI to Marketing Organization which expresses by its terms an
intention to modify this Agreement.
H. SEVERABILITY. If it should appear that any term of this Agreement is
in conflict with any rule of law, statute, or regulation in effect in
any state where Marketing Organization writes or solicits business for
SBL or SDI, then any such term shall be deemed inoperative and null
and void insofar as it may be in conflict therewith and shall be
deemed modified to conform to such rule of law, statute or regulation.
The existence of any such apparent conflict shall not invalidate the
remaining provisions of this Agreement.
I. EFFECTIVE DATE. This Agreement shall take effect on the date shown
below.
MARKETING ORGANIZATION SECURITY BENEFIT LIFE INSURANCE COMPANY
----------------------------------------------------------------
Print Name of Marketing Organization By
|_| Individual |_| Partnership |_| Corporation --------------------------------------------------------
----------------------------------------------------------------- Title
Print Name of Principal Officer if a Partnership or Corporation -----------------------------------------------------
By Date
------------------------------------------------------------- ------------------------------------------------------
Signature of Individual or Principal Officer
SECURITY DISTRIBUTORS, INC.
Date
------------------------------------------------------------ By --------------------------------------------------------
APPROVED BY:
----------------------------------------------------------------
Print Name of Sponsoring Marketing Organization (if applicable) Title -----------------------------------------------------
By
-------------------------------------------------------------
Signature of Principal Officer Date
-----------------------------------------------------
Effective Date of Agreement
-----------------------------------