METLIFE INVESTORS DISTRIBUTION COMPANY
SALES AGREEMENT
TABLE OF CONTENTS
I. DEFINITIONS
II. AUTHORIZATION, REPRESENTATIONS, AND
COVENANTS OF METLIFE
III. REPRESENTATIONS AND COVENANTS OF
BROKER
IV. COMPLIANCE WITH APPLICABLE LAW
4.1 APPLICABLE LAW
4.2 ANTI-MONEY LAUNDERING AND
CUSTOMER IDENTIFICATION
V. COMPENSATION
VI. COMPLAINTS AND INVESTIGATIONS
VII. RECORDS AND ADMINISTRATION
VIII. CUSTOMER INFORMATION AND PROTECTED
HEALTH INFORMATION
8.1 CUSTOMER INFORMATION
8.2 PROTECTED HEALTH INFORMATION
("PHI")
8.3 ADDITIONAL BROKER RESPONSIBILITY
WITH RESPECT TO PHI
8.4 PRIVACY NOTICES AND
AUTHORIZATION
IX. CONFIDENTIAL INFORMATION
9.1 CONFIDENTIAL INFORMATION
9.2 RETURN OF CONFIDENTIAL
INFORMATION
9.3 DAMAGES
X. INDEMNIFICATION
XI. GENERAL PROVISIONS
11.1 TERM AND TERMINATION
11.2. ASSIGNABILITY
11.3 AMENDMENTS
11.4 NOTICES
11.5 ARBITRATION
11.6 GOVERNING LAW
11.7 ENTIRE UNDERSTANDING
11.8 THIRD PARTY BENEFICIARIES
11.9 NON-EXCLUSIVITY
11.10 NON-SOLICITATION OF EMPLOYEES
AND AGENTS
11.11 WAIVER
11.12 COUNTERPARTS
11.13 SEVERABILITY
11.14 TRADEMARKS
11.15 PREPARATION OF CERTIFICATES
11.16 PARTIES' CONTROL OF BUSINESS AND
OPERATIONS
Enterprise Selling Agreement 02-11
METLIFE INVESTORS DISTRIBUTION COMPANY
SALES AGREEMENT
This agreement, including the exhibits attached hereto (collectively the
"Agreement") is made, entered into and effective as of , ("Effective
Date") by and among MetLife Investors Distribution Company, a Missouri
corporation ("MLIDC"), and, (the "Broker") that is registered as a broker
dealer with the Securities and Exchange Commission ("SEC") under the Securities
Exchange Act of 1934, as amended, (the "1934 Act") and a member of the
Financial Industry Regulatory Authority ("FINRA") and is also either licensed
as an insurance agency or is affiliated with one or more validly licensed
insurance agencies.
WITNESSETH:
WHEREAS, MLIDC and its Affiliates (as hereafter defined) issue or provide
access to certain insurance and financial products;
WHEREAS, Broker sells and services insurance and financial products and wishes
to sell and service certain of MLIDC's and its Affiliates insurance and
financial products;
WHEREAS, MLIDC proposes to compensate Broker for such sales and servicing;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
___________
Section 1.1. The following terms, when used in this Agreement, shall have the
meanings set forth in this Article I. Other terms may be defined throughout
this Agreement. Definitions shall be deemed to refer to the singular or plural
as the context requires:
(a)Affiliate - Any entity that directly or indirectly controls, is
controlled by or is under common control with MLIDC or Broker, as
applicable, including, without limitation, any entity that owns 25% or
more of the voting securities of any of the foregoing and any entity
that is a subsidiary of any of the foregoing.
(b)Agency - Those agencies identified in Exhibit C hereto, which are
properly licensed to participate in the business of insurance.
(c)Applicable Law - Shall have the meaning given to such term in Article IV
of this Agreement.
(d)Business Day - Any day other than a Saturday, Sunday or a federal legal
holiday.
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(e)Confidential Information - Includes without limitation, (i) statistical,
premium rate and other information that is identified by MLIDC as
commercially valuable, confidential, proprietary or a trade secret,
including but not limited to information regarding MLIDC's systems and
rating methodology; and (ii) any information identified in writing by a
party as confidential at the time the information is divulged to the
other party.
Confidential Information does not include any information, written or
oral, which (i) at the time of disclosure or thereafter is generally
available in the public domain (other than as a result of a disclosure
in violation of this Agreement), (ii) has been received, obtained,
developed or created by the receiving party independently from the
performance of its obligations under this Agreement, or (iii) was made
available to the receiving party on a non-confidential basis from a
source other than the disclosing party, provided that such source is not
and was not bound by an independent obligation of confidentiality.
(f)Contracts - Those contracts and policies that are identified on Exhibits
A and B attached hereto, which Exhibits may be amended at any time by
MLIDC in its sole discretion.
(g)Customer Complaint - Shall have the meaning given to such term in
Section 6.2 of this Agreement.
(h)Customer Information - Information in electronic, paper or any other
form that Broker or its representatives obtained, had access to or
created in connection with its obligations under this Agreement
regarding individuals who applied for or purchased MLIDC products.
Customer Information includes Nonpublic Personal Information, as defined
below in paragraph (j), and Protected Health Information, as defined in
paragraph (m). Customer Information may also include, but is not limited
to, information such as the individual's name, address, telephone
number, social security number, as well as the fact that the individual
has applied for, is insured under, or has purchased a MLIDC product.
Customer Information does not, however, include information that is
(i) generally available in the public domain (other than as a result of
a disclosure in violation of this Agreement) and is derived or received
from such public sources by Broker; (ii) received, obtained, developed
or created by the Broker independently from the performance of its
obligations under this Agreement; (iii) disclosed to the Broker by a
Third Party, provided such disclosure was made to Broker without any
violation of an independent obligation of confidentiality or Applicable
Law.
(i)HIPAA - The Health Insurance Portability and Accountability Act of 1996,
as now in force or hereafter amended, and all related regulations.
(j)Nonpublic Personal Information - Nonpublic personal information means
financial or health related information by which a financial
institution's consumers and customers are individually identifiable,
including but not limited to nonpublic personal information as defined
by Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and regulations adopted
pursuant to the Act.
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(k)Non-variable Contracts - Those Contracts that include, without
limitation, non-variable rate annuity contracts, non-variable life
insurance policies, long term care insurance and other fixed insurance
contracts, issued by MLIDC or its Affiliates, as identified in Exhibit
B, which Exhibit may be amended at any time by MLIDC in its sole
discretion.
(l)Prospectus - The prospectuses and statements of additional information
included within the Registration Statements referred to herein or filed
pursuant to the Securities Act of 1933 and the Investment Company Act of
1940, as amended.
(m)Protected Health Information ("PHI") - Information related to
individuals who have applied for, have purchased or are insured under
MLIDC products that are considered to be health plans subject to HIPAA,
such as MLIDC's long-term care insurance policies and riders, for the
purposes of this Agreement and, consistent with regulations issued
pursuant to HIPAA. PHI is defined as individually identifiable
information that is transmitted or maintained in any medium and relates
to: the past, present or future physical or mental health or condition
of an individual; the provision of health care to an individual; or
future payment for the provision of health care to the individual. This
definition of PHI includes demographic information about the individual,
including, but not limited to, names, geographic subdivisions smaller
than a state (including but not limited to street addresses and ZIP
codes); all elements of dates (except year) for dates directly related
to an individual, including but not limited to birth date; telephone
numbers; fax numbers; electronic mail (E-mail) addresses; Social
Security numbers; medical record numbers; health plan beneficiary
numbers; account numbers; certificate/license numbers; vehicle
identifiers and serial numbers, including license plate numbers; device
identifiers and serial numbers; Web Universal Resource Locators;
Internet Protocol address numbers; biometric identifiers, including
finger and voice prints; full face photographic images and any
comparable images; and any other unique identifying number,
characteristic, or code.
(n)Registration Statements - Registration statements and amendments thereto
filed with the SEC relating to the Variable Contracts, including those
for any underlying investment vehicle or variable insurance rider.
(o)Representatives - Those individuals, accepted by MLIDC or its Affiliates
to solicit and sell Contracts under the terms of this Agreement, who are
licensed and appointed as a life insurance agent of MLIDC or its
Affiliates, and with respect to registered products, are also registered
with Broker in compliance with the 1934 Act.
(p)Third Party - A party that is not a signatory to this Agreement.
(q)Variable Contracts - Those Contracts that include variable life
insurance policies, variable annuity contracts, variable insurance
riders and other variable insurance contracts, issued by MLIDC or its
Affiliates, as identified in Exhibit A, which Exhibit may be amended at
any time by MLIDC in its sole discretion.
(r)1933 Act - The Securities Act of 1933, as amended.
(s)1934 Act - The Securities Exchange Act of 1934, as amended.
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ARTICLE II
AUTHORIZATIONS, REPRESENTATIONS, AND COVENANTS OF MLIDC
_______________________________________________________
Section 2.1. Authorization. MLIDC represents that it is duly authorized, on
______________
behalf of itself and each Affiliate that issues or provides access to the
Contracts, to enter into this Agreement with Broker to distribute such
Contracts.
Section 2.2. Solicitation of Applications.
_____________________________
(a)Solicit Non-variable Contract Applications. MLIDC authorizes Broker
___________________________________________
through its Representatives to solicit applications for the Non-variable
Contracts, provided that (i) Broker shall not solicit applications for
Non-variable Contracts except in those states where it and its
Representatives are appropriately licensed; (ii) in which the
Non-variable Contracts are qualified for sale under Applicable Law; and
(iii) Broker complies in all other respects with the published policies
and procedures of MLIDC or its Affiliates, as applicable, and with the
terms of this Agreement.
(b)Solicit Variable Contract Applications. MLIDC authorizes Broker through
_______________________________________
its Representatives to offer and sell the Variable Contracts, provided
that (i) Broker shall not solicit applications for Variable Contracts
except in those states where it is and its Representatives are
appropriately licensed; (ii) there is an effective Registration
Statement relating to such Variable Contracts; (iii) such Variable
Contracts are qualified for sale under Applicable Law in such state in
which the sale or solicitation is to take place; and (iv) Broker
complies in all other respects with the published policies and
procedures of MLIDC and its Affiliates, and with the terms of the
Agreement.
Section 2.3. Required Notices to Broker. MLIDC shall notify Broker or its
___________________________
designee of the issuance by the SEC of any stop order with respect to a
Registration Statement or the initiation of any proceeding by the SEC relating
to the registration and/or offering of Variable Contracts and of any other
action or circumstances that makes it no longer lawful for MLIDC or its
Affiliates to offer or issue one or more of Variable Contracts. MLIDC shall
advise Broker of any revision of or supplement to any Prospectus related to the
Variable Contracts or underlying investments of such Variable Contracts.
Section 2.4. Rights of MLIDC. Without limiting MLIDC and its Affiliates
________________
absolute control of their business and operations or other rights under this
Agreement, MLIDC and its Affiliates shall specifically retain authority to:
a) refuse for any reason to appoint a Representative and cancel any
existing appointment at any time;
b) direct the marketing of its financial and insurance products and
services;
c) refuse to issue any Product;
d) underwrite all insurance policies issued by it;
e) cancel risks;
f) handle all matters involving claims adjusting and payment;
g) prepare all policy forms and amendments;
h) maintain custody of, responsibility for and control of all investments;
and
i) withdraw a Contract from sale or change or amend a Contract at MLIDC's
discretion.
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Section 2.5. Broker's Access to Copies of Documents. During the term of this
_______________________________________
Agreement, MLIDC shall provide Broker, without charge and when applicable, with
as many copies of the Contract prospectus(es), current underlying mutual fund
prospectus(es), statements of additional information and applications for the
Contracts, as Broker may reasonably request. Upon receipt from MLIDC of updated
copies of the Contract prospectus(es), current underlying mutual fund
prospectus(es), statements of additional information and applications for the
Contracts, Broker shall promptly discard or destroy all copies of such
documents previously provided to them, except such copies as are needed for
purposes of maintaining records as may be required in Article VII and by
Applicable Law. Upon termination of this Agreement, Broker shall promptly
return to MLIDC all Contract prospectus(es), current underlying mutual fund
prospectus(es), statements of additional information, Contract applications and
other materials and supplies furnished by MLIDC to Broker or to its
Representatives, except for copies required for maintaining records as may be
required in Article VII and by Applicable Law.
Section 2.6. Advertising Material. During the term of this Agreement, MLIDC or
_____________________
its Affiliates shall be responsible for providing and approving all
promotional, sales and advertising material to be used by Broker. MLIDC shall
file such materials or shall cause such materials to be filed with the SEC,
FINRA, and any state securities or insurance regulatory authorities, as
required by Applicable Law.
Section 2.7. Marketing Reports. MLIDC or its Affiliate shall compile periodic
__________________
marketing reports summarizing sales results to the extent reasonably requested
by Broker.
ARTICLE III
REPRESENTATIONS AND COVENANTS OF BROKER
_______________________________________
Section 3.1. Appointment of Broker. Broker shall solicit, sell and service the
______________________
Contracts and shall use commercially reasonable efforts to find suitable
purchasers for the Contracts. Broker represents and warrants that it shall only
offer Contracts in those states where it or its Agency is appropriately
licensed and has obtained any other appointments, approvals, licenses,
authorizations, orders or consents which are necessary to enter into this
Agreement and to perform its duties hereunder.
Section 3.2. Licenses, Appointments and Approvals. Broker represents and
_____________________________________
warrants that it is a registered broker-dealer under the 1934 Act, has all
necessary broker-dealer licenses, is a member in good standing with the FINRA,
and is licensed as an insurance broker and has obtained any other approvals,
licenses, authorizations, orders or consents which are necessary to enter into
this Agreement and to perform its duties hereunder. Broker further represents
that its Representatives who shall be soliciting applications for the
Contracts, whether alone or jointly with representatives of MLIDC or its
designee, shall at all times be appropriately registered and/or licensed as
required by Applicable Law and shall comply with all requirements of Applicable
Law. Broker further represents that neither it nor any of its Representatives
are currently under investigation by any insurance regulator, FINRA, any other
self-regulatory organization or other governmental authority, including but not
limited to the SEC and Departments of Insurance (except for any investigations
of which it has notified MLIDC in writing). Broker further represents that it
shall notify MLIDC of the existence and subject matter of any formal or
informal investigation of Broker or any of its agents that is commenced by any
insurance regulator, FINRA or SEC, any other self regulatory organization or
other governmental authority, in connection with the sale of the Contracts.
Broker further represents that it shall immediately notify MLIDC in writing if
it or any of its Representatives have any of their respective licenses, which
are required under this Agreement for the solicitation of, sale of or provision
of services to the Contracts, surrendered, removed, revoked, cancelled or
suspended, whether voluntarily or involuntarily.
Section 3.3. Policies and Procedures. Broker shall comply with the policies and
________________________
procedures of MLIDC and its Affiliates with respect to the solicitation, sales
and administration of Contracts and services Broker and Representatives are
authorized to sell and service under the Agreement, including, but not limited
to, privacy policies and procedures, as those policies and procedures may be
provided to Broker by MLIDC from time to time.
Section 3.4. Disclosure of Relationship with MLIDC and Disclosure of
_______________________________________________________
Compensation.
_____________
If and as required by Applicable Law, Broker shall disclose in writing to each
applicant for a Contract Broker's relationship with MLIDC and the compensation,
and anything of value, Broker receives from MLIDC for the services performed
under this or
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any other Agreement. MLIDC reserves the right to disclose to its purchasers of
Contracts, and potential purchasers of Contracts, details regarding
compensation, and anything of value, it, and any MLIDC affiliate, may pay to
Broker, or any of its affiliates, under this Agreement and any other agreement.
Section 3.5. Education, Training, Supervision and Control of Representatives.
________________________________________________________________
Broker shall train, supervise and be solely responsible for the conduct of its
Representatives in their solicitation and servicing activities in connection
with the Contracts, and shall supervise Representatives' strict compliance with
Applicable Law, as well as the rules and procedures of MLIDC pertaining to the
solicitation, sale and submission of applications for the Contracts and the
provision of services relating to the Contracts. Broker shall conduct
background investigations of its current and proposed new Representatives to
determine their qualifications, good character and moral fitness to sell the
Contracts and shall provide MLIDC with copies of such investigations upon
MLIDC's written request. Likewise, Broker is solely liable for the acts and
omissions of its Representatives in the course of conducting its business.
Section 3.6. Broker/Representative Communications. Neither Broker nor any of
_____________________________________
its Representatives, are authorized by MLIDC or its Affiliates to give any
information or make any representation in connection with this Agreement or the
offering of the Contracts other than those contained in the Contract,
Prospectus, or promotional material authorized for use in writing by MLIDC or
its Affiliates. Broker shall not make any representations or give information
that is not contained in the Contract, Prospectus or promotional material of
the Contracts.
Section 3.7. Suitability Requirements. Broker shall establish and maintain a
_________________________
system to supervise its Representatives reasonably designed to ensure that, in
making a recommendation to purchase a Contract (including as a part of an
exchange), the Representative has reasonable grounds to believe that, based on
facts disclosed by the purchaser, the purchase of the Contract is suitable for
the purchaser as and to the extent required by Applicable Law. As part of the
supervisory system, Broker shall maintain written procedures and conduct
periodic reviews of its records that are reasonably designed to achieve
compliance with these requirements. Broker shall be solely responsible for
determining the suitability of recommendations to purchase a Contract made by
its Representatives in accordance with Applicable Law, and shall, upon a
reasonable written request from MLIDC, provide written documentation of such
process, including without limitation the certifications required in
Section 4.3. To the extent required by Applicable Law and upon written request
from MLIDC, Broker shall promptly provide documentation and other information
reasonably necessary to allow MLIDC or its Affiliates to determine that Broker
is performing the required functions described above.
Section 3.8. Application Review. Broker shall review diligently all Contract
___________________
applications for accuracy and completeness and for compliance with the
conditions herein, including the suitability and prospectus delivery
requirements, and shall take all reasonable and appropriate measures to ensure
that applications submitted to MLIDC are accurate, complete, compliant with the
conditions herein, and approved by a qualified registered principal.
Section 3.9. Replacement. Broker certifies on behalf of itself, its
____________
Representatives and its Agencies that it shall adhere to Applicable Law before
it receives or solicits any applications for Contracts. In addition to the
conditions and limitations elsewhere contained in this Agreement and the
Compensation Schedules, no first year commission shall be payable on
replacements or switches of any Contract with another Contract, which are
undisclosed, and which require disclosure by Applicable Law or MLIDC's or its
Affiliates' rules on replacement transactions. Specific replacement or
switching rules of each applicable Affiliate are described in MLIDC's Rewritten
Business Rules, which shall be provided to Broker and which may be amended at
any time by MLIDC in its sole discretion.
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MLIDC shall provide Broker with written guidelines of MLIDC's position with
respect to the acceptability of replacements (the "Replacement Guidelines"),
which Replacement Guidelines may be amended at any time by MLIDC in its sole
discretion. Broker shall provide each of its Representatives with a copy of the
Replacement Guidelines. Broker shall establish and maintain a system to
supervise its Representatives reasonably designed to review the appropriateness
of each replacement transaction and each transaction's conformity with the
Replacements Guidelines. As part of its supervisory system, Broker shall
implement procedures that are reasonably designed to detect transactions that
are replacements of existing policies or contracts, but that have not been
reported as such by the Representative making the sale. These procedures must
include, but are not limited to, systematic customer surveys and interviews,
confirmation letters and programs of internal monitoring. Broker shall be
solely responsible for determining that a replacement transaction by any of its
Representatives is in compliance with MLIDC's Replacement Guidelines and with
Applicable Law. To the extent required by Applicable Law and upon written
request from MLIDC, Broker shall promptly provide documentation and other
information reasonably necessary to allow MLIDC or its Affiliates to determine
that Broker is performing the required functions described in this Section 3.9.
Section 3.10. Audit of Representatives. Broker shall maintain reasonable
_________________________
procedures for its periodic audit of its Representatives' sales practices and
shall, upon a reasonable written request from MLIDC, provide a written report
to MLIDC on the results of such audits; provided, however, that Broker shall
retain sole responsibility for the supervision, inspection and control of its
Representatives.
Section 3.11. Collection of Payments. Only the initial purchase payments for
_______________________
the Contracts shall be collected by Representatives of Broker. All such
purchase payments shall be remitted promptly in full (and in no event later
than the time permitted under Applicable Law) together with any related
application, forms and any other required documentation to MLIDC or the
appropriate Affiliate. The Broker shall make such remittances in accordance
with any and all policies and procedures described in the Contract, prospectus,
if appropriate, or as otherwise adopted by MLIDC and its Affiliates.
Section 3.12. Contract Delivery. Unless otherwise requested by Broker and
__________________
agreed to by MLIDC, once a Contract has been issued, it shall be delivered to
Broker and, after review by Broker, shall be timely delivered by Broker to the
applicant, accompanied by any documents required to be delivered by Applicable
Law and any additional appropriate documents. In the case of long-term care
insurance, Broker shall ensure delivery of each new long-term care insurance
contract within thirty (30) days of the contract's approval date. MLIDC shall
confirm or cause to be confirmed to customers all Contract transactions, to the
extent required by Applicable Law, and shall administer the Contracts after
they have been delivered, but may from time to time require assistance from
Broker. If a purchaser exercises the free look rights under a Contract, Broker
shall indemnify MLIDC for any loss incurred by MLIDC or its Affiliates that
results from Broker's failure to promptly deliver such Contract to its
purchaser.
Section 3.13. Rejection of Applications and Return of Contracts. Broker
__________________________________________________
acknowledges that MLIDC, on behalf of itself and its Affiliates, shall have the
unconditional right to reject, in whole or in part, any application for a
Contract. If MLIDC rejects an application, MLIDC or its Affiliate shall
immediately return any purchase payments received directly to the Broker, and
Broker shall be responsible for promptly returning such payments to the
purchaser. If any purchaser of a Contract elects to return such Contract
pursuant to any law or contractual provision, any purchase payment made or such
other amount, as the Contract or Applicable Law shall specify, shall be
returned by MLIDC or its Affiliates to the Broker and the Broker shall be
responsible for promptly returning such payments to the purchaser.
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Section 3.14. Independent Contractor. Except as otherwise required by
_______________________
Applicable Law, Broker is not a principal, underwriter or agent of MLIDC or its
Affiliates, or any separate account of MLIDC or its Affiliates. It is
understood and acknowledged that Broker, its agents, designees or
Representatives are independent contractors and not employees of MLIDC or any
of its subsidiaries or affiliates. None of the terms of this Agreement shall be
construed as creating an employer-employee relationship between Broker, its
agents, designees or Representatives, on the one hand, and MLIDC, on the other
hand. Broker, its agents and its other representatives, shall not hold
themselves out to be employees of MLIDC or its Affiliates in this connection or
in any dealings with the public. Neither Broker nor its agents, designees or
other representatives shall have authority on behalf of MLIDC or its Affiliates
to alter or amend any Contract or any form related to a Contract to adjust or
settle any claim or commit MLIDC or its Affiliates with respect thereto, or
bind MLIDC or its Affiliates in any way; or enter into legal proceedings in
connection with any matter pertaining to MLIDC's business without its prior
written consent. Broker shall not expend, nor contract for the expenditure of,
funds of MLIDC or its Affiliates nor shall Broker possess or exercise any
authority on behalf of MLIDC other than that expressly conferred on Broker by
this Agreement.
Section 3.15. Promotional Materials. To the extent that Broker uses brochures,
______________________
other promotional materials and literature, and training material in connection
with marketing or servicing Contracts, or that mention MLIDC, its products or
services in any way (collectively referred to herein as "MLIDC Materials"),
such MLIDC Materials shall only be used with the prior written approval of
MLIDC. Similarly, Broker shall not use any information related to MLIDC or
Contracts on any Web site without the prior written consent of MLIDC. Any
requests for written approval of materials for use by Broker shall be submitted
in writing by Broker to the individual and offices as directed by MLIDC.
Section 3.16. Instructions by Representative. Broker and Agency shall be solely
_______________________________
responsible for the accuracy and propriety of any (i) instruction given to
MLIDC by a Representative on behalf of an owner or prospective owner of a
Contract, or (ii) action taken by a Representative on behalf of an owner or
prospective owner of a Contract. MLIDC shall have no responsibility or
liability for any action taken or omitted by it in reliance on or by acceptance
of such an instruction or action.
Section 3.17. Furnishing Information. Broker shall furnish MLIDC and any
_______________________
regulatory authority with jurisdiction over the subject matter of this
Agreement with any information, documentation, or reports prepared in
connection with or related to this Agreement which may be requested by MLIDC or
such a regulatory authority in order to ascertain whether the operations of
MLIDC or Broker related to the Contracts are being conducted in a manner
consistent with Applicable Law.
Section 3.18. Authority. Broker represents that it has full authority to enter
__________
into this Agreement and that by entering into this Agreement it shall not
impair any other of its contractual obligations with respect to sales of any
Contract.
Section 3.19. Insurance Coverage.
___________________
a) Fidelity Bond. Broker shall secure and maintain a fidelity bond
______________
(including coverage for larceny and embezzlement), issued by a bonding
company acceptable to MLIDC, covering all of its directors, officers,
agents, Representatives, associated persons and employees who have
access to funds of MLIDC or its Affiliates. This bond shall be
maintained at Broker's expense in at least the amount prescribed under
Rule 3020 of the FINRA Conduct Rules or future amendments thereto.
Broker shall provide MLIDC with satisfactory evidence of said bond upon
MLIDC's reasonable request. Broker hereby assigns any proceeds received
from a fidelity bonding company, or other liability coverage, to MLIDC,
for itself or on behalf of its Affiliates, as their interest may appear,
to the extent of its loss due to activities covered by the bond, policy
or other liability coverage.
b) Plan of Insurance. Broker shall maintain in full force and effect during
__________________
the term of this Agreement a plan of insurance (which may be a plan of
self-insurance if agreed to in writing in advance by MLIDC) which shall
provide coverage for errors and omissions of Broker and its directors,
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officers, employees, agents, Agencies and Representatives, in such
amounts and scope of coverage as are acceptable to MLIDC in its sole
discretion. If requested by MLIDC, Broker shall provide evidence of
coverage under an insurance policy, or a plan of self-insurance,
satisfactory to MLIDC showing the amount and scope of coverage provided.
If such insurance plan terminates for any reason during the term of this
Agreement, Broker shall immediately notify MLIDC in writing of such
termination and MLIDC shall have the right to immediately terminate this
Agreement.
c) Loss of coverage. The authority of any Representative to solicit and
_________________
procure Contracts hereunder shall terminate automatically upon the
termination of such Representative's coverage under the Broker's
fidelity bond or plan of insurance referred to in subsections (a) and
(b) above.
Section 3.20. Agency Distribution of Variable Contracts. In such cases where
__________________________________________
Broker intends to distribute the Variable Contracts through an Agency, Broker
further represents that Agency shall engage in the offer or sale of Variable
Contracts only through persons who are Representatives of the Broker. Broker
shall further ensure that unregistered employees shall not engage in any
securities activities requiring registration, nor receive any compensation
based on transactions in securities or the provision of securities advice.
Section 3.21. Market Timing.
______________
(a)Broker shall not, and Broker shall take all steps necessary to ensure
that its Representatives and any Agency shall not (i) solicit, offer or
sell Variable Contracts in connection with or to facilitate any program,
plan or arrangement involving market timing transactions in underlying
mutual funds within Variable Contracts, or (ii) take any other actions
that would promote, encourage or facilitate market timing transactions
in the underlying mutual funds within Variable Contracts.
(b)Notwithstanding the foregoing, Broker and its Representatives may
provide incidental services in the form of guidance to applicants and
owners of Variable Contracts regarding the allocation of premium and
Variable Contract value, provided that such services are (i) solely
incidental to Broker's activities in connection with the sales of the
Variable Contracts, (ii) subject to the supervision and control of
Broker, (iii) furnished in accordance with any rules and procedures that
may be prescribed by MLIDC, and (iv) not promoting, encouraging or
facilitating market timing transactions in the underlying mutual funds
within Variable Contracts.
Section 3.22. Prohibited Solicitation With Contract Holders. For a period of 12
______________________________________________
months after termination of the Agreement, the Broker and Agency shall not,
directly or indirectly, and on a systematic basis, contact the contract holders
of MLIDC or its Affiliates or condone such contact for the purpose of inducing
any such contract holders to lapse, cancel, and fail to renew or replace any
Contract. If the Broker or Agency, in the judgment of MLIDC is determined to
have engaged in such prohibited activity, then MLIDC shall have the right to
declare the Broker's and Agency's claims for compensation or any other benefit
under the Agreement to be forfeited and void. MLIDC, on behalf of itself and
its Affiliates, may also pursue all remedies, including injunction, to assure
compliance with the covenants in this Section 3.22 and shall, if successful, be
entitled to recover from the Broker and Agency all costs and expenses incurred
in pursuing such remedies, including reasonable attorneys' fees.
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ARTICLE IV
COMPLIANCE WITH APPLICABLE LAW
______________________________
Section 4.1. Applicable Law. MLIDC and Broker shall comply with all applicable
_______________
state and federal statutes, laws, rules, and regulations including without
limitation, state insurance laws, rules and regulations, and federal and state
securities laws, rules and regulations ("Applicable Law"). Applicable Law also
includes applicable guidelines, policies, and rulings of federal and state
regulatory organizations and agencies, including without limitation state
insurance departments, the SEC and the FINRA, consumer privacy laws, HIPAA and
any other state or federal laws, rules or regulations and decisions, orders and
rulings of state and federal regulatory agencies that are now or may hereafter
become applicable to the parties hereto and the transactions that are the
subject of this Agreement.
Section 4.2. Anti-Money Laundering and Customer Identification.
__________________________________________________
a) Broker shall comply with all applicable anti-money laundering laws,
regulations, rules and government guidance, including the reporting,
recordkeeping and compliance requirements of the Bank Secrecy Act
("BSA"), as amended by The International Money Laundering Abatement and
Financial Anti-Terrorism Act of 2002, Title III of the USA PATRIOT Act
("the Act"), its implementing regulations, and related SEC and SRO
rules. These requirements include requirements to identify and report
currency transactions and suspicious activity, to implement a customer
identification program to verify the identity of customers, and to
implement an anti-money laundering compliance program. As required by
the Act, Broker certifies that it has: a comprehensive anti-money
laundering compliance program that includes, policies, procedures and
internal controls for complying with the BSA; policies, procedures and
internal controls for identifying, evaluating and reporting suspicious
activity; a designated compliance officer or officers; training for
appropriate persons; and an independent audit function.
b) Further Broker certifies, and shall certify to MLIDC annually hereafter,
that it has established and implemented a training program for
appropriate persons, including appropriate employees and all
Representatives registered with Broker, and that such program includes
training on the requirements of Broker's anti-money laundering
compliance program and on the identification of "red flags" associated
with money laundering risks related to MLIDC's covered products, as they
are defined in the regulations promulgated under Section 352 of the Act
in accordance with the definitions provided in Section 103.37(a)(4).
Broker shall provide training to all appropriate persons, including its
appropriate employees and all Representatives registered with Broker
concerning their responsibilities under the company's anti-money
laundering program, and that such training shall include instruction on
the identification of "red flags" associated with money laundering risks
related to MLIDC's covered products, as they are defined in the
regulations promulgated under Section 352 of the Act in accordance with
the definitions provided in Section 103.37(a)(4).
c) Further Broker certifies, and shall certify to MLIDC annually hereafter,
that it has established and implemented a Customer Identification
Program, in compliance with applicable regulations, as part of its
anti-money laundering compliance program that, at a minimum, requires:
(i) the verification of the identity of any customer seeking to open an
account; (ii) the retention of a record of the information used to
verify each customer's identity; and (iii) the determination, within a
reasonable time before or after the account is opened, as to whether the
customer appears on any lists of known or suspected terrorists or
terrorist organizations as provided to it by any government agency.
d) Broker shall verify the identity of each customer that it introduces to
MLIDC, whether through documentary or non-documentary means, and that
MLIDC shall rely upon such verification, as prescribed by the
regulations promulgated under Section 326 of the Act in accordance with
the safe-harbor provided in Section 103.122(b)(6) of the regulations
under the Act.
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Enterprise Selling Agreement 02-11
e) Broker shall immediately notify MLIDC of any activity, behavior, or
transaction that results in Broker filing a suspicious activity report
and that it shall share information to the extent permissible under the
regulations promulgated under Section 314 of the Act in accordance with
the safe harbor provided in Section 103.110(b)(5) of the regulations
under the Act.
Section 4.3. Suitability Certification. To the extent required by Applicable
__________________________
Law and in accordance with Section 3.7, Broker hereby certifies, and shall
hereafter annually certify in writing to MLIDC, to the following:
With respect to the solicitation and sale of fixed and variable annuity
Contracts offered by MLIDC and its Affiliates, Broker has in place a
system to supervise recommendations made for the Contracts that is
reasonably designed to achieve compliance with state insurance laws or
regulations regarding suitability and, with respect to variable
annuities, to comply with applicable FINRA Conduct Rules, including Rule
2310, regarding suitability. As part of this supervisory system Broker
maintains written procedures and conducts periodic reviews of its
records that are reasonably designed to achieve compliance with these
requirements.
Annual certificates shall be signed by an authorized senior officer or manager
of the Broker with responsibility for overseeing annuity sales practices and
who has a reasonable basis on which to make the certification on behalf of the
Broker.
ARTICLE V
COMPENSATION
____________
Section 5.1. Payment Under Compensation Schedules. MLIDC shall pay Broker
_____________________________________
compensation for the sale of each Contract sold by Representatives of Broker as
set forth in Exhibits A and B. MLIDC shall identify to Broker with each such
payment the name or names of the Representative(s) of Broker who solicited each
Contract covered by the payment. Broker shall be responsible for issuing
checks, statements or forms for tax purposes and other administrative duties
connected with compensation of such Representatives. Unless otherwise agreed
upon by the parties, MLIDC shall have no obligation to any of the employees,
agents or Representatives of Broker or Agency for the payment of any
compensation. Unless otherwise provided in Exhibits A and B, compensation on
the Contracts, including the commissions and fees therein, may be amended by
MLIDC at any time, in any manner, and without prior notice. If Broker or its
Representatives replace an existing Product issued by any of MLIDC's Affiliates
in whole or in part, the compensation set forth in Exhibits A or B is
inapplicable and MetLife, in its sole discretion, shall determine what, if any,
commissions shall be payable in accordance with MetLife's Rewritten Business
Rules in effect at the time of such replacement.
Section 5.2. Sole Discretion to Refund Premiums. Broker recognizes that MLIDC
___________________________________
and its Affiliates have sole discretion to refund or return purchase payments
paid by applicants.
Section 5.3. Chargeback of Compensation. Except as otherwise may be provided in
___________________________
Exhibit A and B, no compensation shall be payable in connection with a purchase
payment, and any compensation already paid shall be promptly returned to MLIDC
on request, under each of the following conditions:
a) if MLIDC or its Affiliates, in their sole discretion, determine not to
issue the Contract applied for;
b) if MLIDC or its Affiliates refund or return the purchase payment paid by
the applicant for any reason, in whole or in part; or
c) MLIDC or its Affiliates determine that any person signing an application
who is required to be registered and/or licensed or any other person or
entity receiving compensation for soliciting purchases of the Contracts
is not duly registered and/or licensed to sell the Contracts in the
jurisdiction of such attempted sale.
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Section 5.4. Offset. When commission has been paid to a Broker hereunder for a
_______
purchase payment that has since been refunded or returned to the purchaser,
MLIDC may, at its option, offset the amount of that commission against any
other amounts payable to Broker by MLIDC or any one or more of its Affiliates.
In addition, MLIDC may at any time offset against any compensation payable to
the Agency or its successors or assigns, any indebtedness due from the Agency
to MLIDC or its Affiliates. Nothing contained herein shall be construed as
giving Broker, Agency or Representative the right to incur any indebtedness on
behalf of MLIDC or its Affiliates. Any remaining indebtedness of Broker to
MLIDC or its Affiliates arising under this Agreement shall be a first lien
against any monies payable hereunder. The right of Broker, or any person
claiming through Broker to receive any compensation provided by this Agreement
shall be subordinate to the right of MLIDC to offset such compensation against
any such indebtedness of the Broker to MLIDC or its Affiliates.
Section 5.5. No Right to Withhold. Neither Broker nor any of its
_____________________
Representatives shall have any right to withhold or deduct any part of any
premium or other purchase payment it shall receive with respect to the
Contracts covered by this Agreement for purposes of payment of commission or
for any other purpose.
Section 5.6. Impact on Termination. MLIDC shall pay compensation to Broker for
______________________
Contracts credited to an Agency prior to the termination date of this
Agreement, as set forth in Exhibits A and B. Such compensation shall be payable
when the premium is due and paid to MLIDC subject to the provisions of this
Agreement and of the Compensation Schedule(s).
Section 5.7. MLIDC Payment of Compensation; Discharge of Obligation. Agency and
_______________________________________________________
Broker hereby acknowledge that compensation attributable to the sale of any
Contract issued by an Affiliate may be payable directly by MLIDC, in its
discretion, to Agency or Broker where permitted, and not by the Affiliate.
Agency and Broker further acknowledge that such payment of compensation by
MLIDC attributable to the sale of such Contracts shall constitute a complete
discharge of the obligation to pay compensation by the Affiliate issuer under
this Agreement. The foregoing manner of payment shall not affect the right of
offset or chargeback as referred to in Sections 5.3 and 5.4 of this Agreement,
or other compensation rules as may be set forth in this Agreement, Exhibits A
and B, or rules of the MLIDC or its Affiliates.
Section 5.8. Expenses. Broker is responsible for all expenses incurred by the
_________
Broker, except as may be agreed to in writing by MLIDC prior to the Broker
incurring such expenses. Additionally, MLIDC shall, at its expense, provide its
standard advertising and promotional material to the Broker when deemed
appropriate by MLIDC.
Section 5.9. Conflict. With respect to compensation under this Agreement, in
_________
the event that anything contained in this Article 5 conflicts with the terms of
the compensation described in the attached Exhibits A and B, the terms
contained in Exhibits A and B shall prevail.
ARTICLE VI
COMPLAINTS AND INVESTIGATIONS
_____________________________
Section 6.1. Investigation by Regulator. Broker and MLIDC shall cooperate fully
___________________________
in any regulatory investigation or proceeding or judicial proceeding arising in
connection with the offer, sale, and/or servicing of the Contracts.
Section 6.2. Customer Complaints. The term Customer Complaint shall mean an
____________________
oral or written communication either directly from the purchaser of or
applicant for a Contract covered by this Agreement or his/her legal
representative, or indirectly from a regulatory agency to which he/she or
his/her legal representative has expressed a grievance.
Section 6.3. Notice and Handling of Customer Complaints.
___________________________________________
a) MLIDC shall promptly notify Broker of MLIDC's receipt of notice of any
Customer Complaints relating to sales practices or marketing issues
relating to the Contracts by forwarding to Broker a copy of any written
materials in connection with such Customer Complaint and any additional
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Enterprise Selling Agreement 02-11
information as may be necessary to furnish a complete understanding of
same. Broker shall be responsible for resolving Customer Complaints
involving sales practices or marketing issues. MLIDC shall cooperate
with Broker and provide information to Broker related to sales practices
and marketing Customer Complaints that is reasonably required by Broker
to facilitate the resolution of such Customer Complaints. During the
resolution of a sales practices or marketing related Customer Complaint,
Broker shall provide MLIDC with a copy of all correspondence sent and
received regarding that Customer Complaint. Nothing contained in this
Section 6.3 (a) shall limit MLIDC's right to settle as described in
Section 6.4.
b) Broker shall promptly notify MLIDC of Broker's receipt of notice of any
Customer Complaint by forwarding to MLIDC a copy of any written
materials in connection with the Customer Complaint and such additional
information as may be necessary to furnish a complete understanding of
same. MLIDC shall be responsible for resolving Customer Complaints
involving administrative issues. Broker shall cooperate with MLIDC and
provide information to MLIDC related to administrative Customer
Complaints that is reasonably required by MLIDC to facilitate the
resolution of such Customer Complaints.
Section 6.4. Right to Settle. MLIDC reserves the right to settle on behalf of
________________
itself, and on behalf of itself and Broker collectively if Broker agrees, any
claims, complaints or grievances made by applicants, contract holders or others
in connection with the Contracts, and concerning any conduct, act or omission
by the Broker or its agents or representatives with respect to the Contracts or
any transactions arising out of this Agreement. If Broker does not agree to a
collective settlement with MLIDC and MLIDC, on behalf of itself, settles the
matter, Broker shall indemnify and hold harmless MLIDC from any and all claims,
complaints or grievances made by Broker or any applicant, contract holder or
other person or entity made in connection with such matter.
ARTICLE VII
RECORDS AND ADMINISTRATION
__________________________
Section 7.1. Books and Records. Broker shall maintain all books and records as
__________________
required by Rules 17a-3 and 17a-4 under the 1934 Act, except to the extent that
MLIDC may agree in writing to maintain any such records on Broker's behalf.
Records subject to any such agreement shall be maintained by MLIDC as agent for
Broker in compliance with said rules, and such records shall be and remain the
property of Broker and be at all times subject to inspection by the SEC in
accordance with Section 17(a) of that Act. Nothing contained herein shall be
construed to affect MLIDC's or its Affiliates' right to ownership and control
of all records and documents pertaining to its business operations including,
without limitation, its operations relating to the Contracts. MLIDC and Broker
shall each retain all records related to this Agreement as required by the 1934
Act, and the rules and regulations thereunder and by any other Applicable Law,
as Confidential Information.
ARTICLE VIII
CUSTOMER INFORMATION AND PROTECTED HEALTH INFORMATION
_____________________________________________________
Section 8.1. Treatment of Customer Information. Broker shall treat Customer
__________________________________
Information confidentially as required by Applicable Law and by MLIDC, as
described in MLIDC's privacy notices and in accordance with MLIDC policies and
procedures. Broker shall also establish and implement administrative, physical
and technical procedures to ensure the confidentiality, security and integrity
of Customer Information in accordance with Applicable Law. Broker shall comply
with MLIDC's terms of use, policies and procedures with respect to use of MLIDC
electronic systems and databases providing access to Customer Information by
Broker, its employees and Representatives, and shall promptly report to MLIDC
any actual or suspected breach of security related to such systems and
databases of which it becomes aware. To the extent that Broker becomes aware of
any actual or suspected security breach or unauthorized use, disclosure,
acquisition or access to any Customer Information, Broker shall: (i) promptly
notify MLIDC, (ii) take all necessary and advisable corrective actions, and
(iii) cooperate fully with MLIDC in all reasonable and lawful efforts to
prevent, mitigate or rectify such security breach or unauthorized use,
disclosure, acquisition, or access to the Customer Information. Broker may use
Customer Information only for the purpose of fulfilling its obligations under
the Agreement. Broker shall limit access to
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Customer Information to its employees, Representatives and other Third Parties
who need to know such Customer Information to permit Broker to fulfill its
obligations under this Agreement and who have agreed to treat such Customer
Information in accordance with the terms of this Agreement. Broker shall not
disclose or otherwise make accessible Customer Information to anyone other than
to the individual to whom the information relates (or to his or her legally
authorized representative) or to other persons pursuant to a valid
authorization signed by the individual to whom the information relates (or by
his or her legally authorized representative), except as required for Broker to
fulfill its obligations under this Agreement, as otherwise directed by MLIDC,
or as expressly required by Applicable Law. MLIDC and its Affiliates may
market, offer, sell or distribute insurance products, including, but not
limited to, the Contracts, or any of their other products and related services,
outside of this Agreement to customers of Broker provided they do not use
Nonpublic Personal Information regarding Broker's customers provided by Broker
to specifically target those customers, and such marketing, offering, selling
or distributing by MLIDC and its Affiliates of insurance (including but not
limited to the Contracts) or any of their other products or services shall not
be subject to the terms of this Agreement.
Section 8.2. Protected Health Information ("PHI"). Notwithstanding anything to
____________________________
the contrary in this Agreement, in order to comply with HIPAA requirements,
Broker agrees with respect to any PHI received, obtained or created by Broker,
or disclosed or made accessible to Broker, that Broker: (a) shall not use or
disclose PHI except to provide services pursuant to this Agreement and
consistent with Applicable Law; (b) shall limit the use of, access to and
disclosure of PHI to the minimum required to perform services or by Applicable
Law; (c) shall use appropriate safeguards to prevent use or disclosure of PHI
except as permitted by this Agreement; (d) shall promptly report to MLIDC any
use or disclosure of MLIDC PHI not permitted by this Agreement of which it
becomes aware; (e) shall take reasonable steps to mitigate any harmful effect
of any use or disclosure of PHI by Broker in violation of the terms of this
Agreement or Applicable Law; (f) shall require that any of its Representatives
and independent contractors to whom PHI is disclosed or made accessible or who
uses PHI has agreed to the same restrictions and conditions that apply to
Broker with respect to PHI pursuant to this Agreement; (g) shall, within
fifteen (15) days of MLIDC's request, provide to MLIDC any PHI or information
relating to PHI as deemed necessary by MLIDC to provide individuals with access
to, amendment of, and an accounting of disclosures of their PHI, and to
incorporate any amendments of the PHI as requested by MLIDC; (h) shall make its
internal practices, books and records relating to its use or disclosure of PHI
available to the Secretary of the United States Department of Health and Human
Services at his/her request to determine MLIDC's compliance with Applicable
Law; (i) agrees that upon termination of this Agreement it shall, if feasible,
return to MLIDC or destroy all PHI it maintains in any form and retain no
copies, and if such return or destruction is not feasible, to extend the
protections of this Agreement to the PHI beyond the termination of this
Agreement and for as long as Broker has PHI, and further agrees that any
further use or disclosure of the PHI shall be solely for the purposes that make
return or destruction infeasible. Destruction without retention of copies is
not deemed feasible if prohibited by the terms of this Agreement or by
Applicable Law, including record retention requirements under state insurance
laws. With respect to PHI received made accessible, maintained or transmitted
electronically in the performance of its obligations under this Agreement,
Broker further agrees that it shall (1) implement administrative, physical, and
technical safeguards that reasonably and appropriately protect the
confidentiality, integrity, and availability or any such electronic PHI;
(2) ensure that its Representatives agree to implement reasonable and
appropriate safeguards to protect such electronic PHI; and (3) report to the
Company any security incident related to Electronic PHI of which the Broker
becomes aware. In this context, the term "security incident" means the
attempted or successful unauthorized access, use, disclosure, modification or
destruction of information or interference with system operations in
information systems such as hardware, software, information, data applications,
communications and people.
Section 8.3 Additional Broker Responsibility With Respect To PHI. The Broker
_____________________________________________________
agrees and acknowledges that the Broker is directly subject to HIPAA as amended
by the Health Information Technology for Economic and Clinical Health Act
("HITECH Act"), including its provisions relating to security and privacy of
PHI as well as its enforcement and penalty provisions. The Broker agrees to:
(a) comply with all applicable security and privacy provisions of HIPAA as
amended by the HITECH Act and as it may be amended from time to time; (b) not
act in any way to interfere with or hinder the Company's ability to comply with
HIPAA as amended by the HITECH Act and as it may be amended from time to time;
and (c) notify the Company within five (5) business days of discovering a
"breach" as that term is defined in Section 13400 of the HITECH Act at the
following e-mail address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇. In the event Broker
___________________________
learns of a pattern of activity or practice of Company that
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constitutes a material breach or violation of its obligations relating to PHI
under the Agreement, Broker will take reasonable steps to work with Company to
cure the breach or end the violation. If such steps are unsuccessful, Broker
will terminate the Agreement, if feasible, or, if termination is not feasible,
report the problem to the Secretary of Health and Human Services.
Section 8.4. Privacy Notices and Authorization. Broker shall provide to
__________________________________
customers and prospective customers who apply for or purchase MLIDC products,
and shall ensure that its Representatives provide to such customers and
prospective customers, MLIDC privacy notices as required by Applicable Law and
by MLIDC. Broker shall also ensure that its Representatives obtain signed
authorizations from customers and prospective customers who apply for MLIDC
products, as required by MLIDC, and provide upon request of such customers and
prospective customers, copies of their signed authorizations as required by
Applicable Law and MLIDC policy. In the event that a customer or prospective
customer has signed a MLIDC authorization and subsequently informs Broker or
Representatives that he or she is revoking that authorization, Broker shall
promptly inform MLIDC in writing of such revocation.
ARTICLE IX
CONFIDENTIAL INFORMATION
________________________
Section 9.1. Treatment of Confidential Information. MLIDC and Broker and their
______________________________________
respective Affiliates each shall keep confidential all Confidential Information
of the other. Without limiting the generality of the foregoing, MLIDC and
Broker and their respective Affiliates shall not disclose any Confidential
Information to any Third Party without the prior written consent of the other;
provided, however, that each may disclose Confidential Information (a) to those
of its Representatives who have a need to know the Confidential Information in
the ordinary course of business and who are informed of the confidential nature
of the Confidential Information, and (b) as and to the extent required by
Applicable Law or by legal process or requested by an insurance regulatory or
administrative body. However, in the event that clause (b) of the preceding
sentence is applicable, the party required or requested to disclose
Confidential Information shall give prompt written notice thereof to the other
party and shall reasonably cooperate in the other party's efforts to obtain an
appropriate remedy to prevent or limit such disclosure. It is understood by
MLIDC and Broker that this Section 9.1 shall not prevent Broker from quoting
MLIDC premium rates in the ordinary course of business.
Section 9.2. Return of Confidential Information. Promptly upon the termination
___________________________________
of this Agreement or the request of the providing party, the receiving party
shall return to the providing party all Confidential Information furnished by
the providing party or its Representatives. Neither the receiving party nor any
of its Representatives shall make any copies in any form of any documents
containing Confidential Information of the providing party without the prior
written consent of an officer of the providing party, except such copies as
need to be made in the ordinary course of business by MLIDC or Broker to
fulfill their respective obligations under this Agreement.
Section 9.3. Damages. MLIDC and Broker each acknowledge that (a) money damages
________
may not be a sufficient remedy for breach of this Article IX, (b) the Party
aggrieved by any such breach may be entitled to specific performance and
injunctive and other equitable relief with respect to such breach, (c) such
remedies shall not be deemed to be the exclusive remedies for any such breach
but shall be in addition to all other remedies available at law or in equity,
and (d) in the event of litigation relating to this Article IX, if a court of
competent jurisdiction determines in a final non-appealable order that either
MLIDC or Broker or any of their respective Representatives has breached this
Article IX, then the party that is found (or whose Representative is found) to
have committed such breach shall be liable for reasonable legal fees incurred
by the aggrieved party or its affiliates in connection with such litigation
including, without limitation, any appeals.
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ARTICLE X
INDEMNIFICATION AND INSURANCE
_____________________________
Section 10.1. Indemnification. Each party shall hold harmless, defend,
________________
exonerate and indemnify each other party to this Agreement, as well as their
respective employees, agents, trustees, Representatives, officers or directors,
for any and all losses, claims, judgments, fines, penalties, damages, or
liabilities (or any actions or threatened actions in respect of any of the
foregoing) the other party suffers that results from the actions of the
indemnifying party or its representatives with respect to its/their obligations
under this Agreement, or breach of any representation, warranty, covenant,
condition or duty contained in this Agreement or violation of Applicable Law
with respect to its services required under this Agreement.
Section 10.2. Notice of Claim. After receipt of notice of the commencement of,
________________
or threat of, any claim, action, or proceeding by a third party (a "Third Party
Action") by a party that believes it is entitled to indemnification under this
Article X (the "Indemnified Party"), the Indemnified Party shall notify the
party obligated to provide indemnification under this Article X (the
"Indemnifying Party") in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission to so notify the
Indemnifying Party shall not relieve it from any liability under this Article
X, except to the extent that the Indemnifying Party demonstrates that the
defense of such Third Party Action is materially prejudiced by the failure to
give timely notice. Such notice shall describe the claim in reasonable detail.
Section 10.3. Defense, Settlement and Subrogation.
____________________________________
a) The Indemnifying Party shall have the right to assume control of the
defense of such Third Party Action and shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party
and shall pay the reasonable fees and disbursements of such counsel
related to such Third Party Action. The Indemnified Party shall
cooperate and provide such assistance as the Indemnifying Party
reasonably may request in connection with the Indemnifying Party's
defense and shall be entitled to recover from the Indemnifying Party the
reasonable out-of-pocket costs of providing such assistance (including
reasonable fees of any counsel retained by the Indemnified Party with
the consent of the Indemnifying Party to facilitate such assistance).
The Indemnifying Party shall inform the Indemnified Party on a regular
basis of the status of any Third Party Action and the Indemnifying
Party's defense thereof.
b) In any such Third Party Action, the Indemnified Party may, but shall not
be obligated to, participate in the defense of any Third Party Action,
at its own expense and using counsel of its own choosing, but the
Indemnifying Party shall be entitled to control the defense thereof
unless the Indemnified Party has relieved the Indemnifying Party from
liability with respect to the particular Third Party Action.
c) If notice is given to the Indemnifying Party of the commencement of any
Third Party Action hereunder and the Indemnifying Party does not, either
(i) within ten (10) Business Days after the receipt of such notice, give
notice to the Indemnified Party of its election to assume the defense of
such Third Party Action, or (ii) give notice to the Indemnified Party
that it rejects the claim for indemnification pursuant to Section 10.5
herein, the Indemnified Party shall have the right, at its option and at
the Indemnifying Party's expense, to defend such Third Party Action in a
manner that the Indemnified Party deems appropriate. In such a case, the
Indemnified Party shall not consent to the settlement, compromise or
entry of judgment with respect to the Third Party Action without prior
written notice to, consultation with, and written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
d) In any Third Party Action, the defense of which is controlled by the
Indemnifying Party: (i) the Indemnifying Party shall not, without the
Indemnified Party's prior written consent, compromise or settle such
Third Party Action, if (1) such compromise or settlement would impose an
injunction or other equitable relief upon the Indemnified Party or
(2) such compromise or settlement does not
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Enterprise Selling Agreement 02-11
include the Third Party's release of the Indemnified Party from all
liability relating to such Third Party Action; and (ii) the Indemnified
Party shall not compromise or settle such Third Party Action without the
prior written consent of the Indemnifying Party, which consent shall not
be unreasonably withheld, provided that, if the Indemnified Party
desires to compromise or settle such claim, suit or proceeding and the
Indemnifying Party reasonably refuses to consent to such compromise or
settlement, the Indemnified Party may enter into a compromise or
settlement but shall be solely responsible for the cost of any
compromise or settlement amount.
Section 10.4. Claim Not Involving Third Party Action. A claim for
_______________________________________
indemnification by a party hereunder for any matter not involving a Third Party
Action may be asserted by notice to another party.
Section 10.5. Notice of Rejection of Claim. Notwithstanding anything within
_____________________________
this Article X to the contrary, a party who has received a notice of claim for
indemnification under this Article X, may notify the party asserting such claim
for indemnification that it rejects the claim. Such notice rejecting a claim
for indemnification must be given by the rejecting party within ten
(10) business days of its receipt of the notice of claim and shall describe the
basis for the rejection of the claim in reasonable detail.
Section 10.6. Provisions Not to Control. Notwithstanding anything in this
__________________________
Article X to the contrary, the terms and provisions of Article VI shall control
in the event of any conflict or alleged conflict with this Article X.
ARTICLE XI
GENERAL PROVISIONS
__________________
Section 11.1. Term and Termination.
_____________________
a) Term. This Agreement shall continue in force from the Effective Date,
_____
provided that any party may unilaterally terminate this Agreement with
or without cause upon thirty (30) days prior written notice of
termination to the other parties.
b) Termination Due to Change in Status.
____________________________________
1) Broker-Dealer Status. The Agreement shall terminate immediately upon
_____________________
MLIDC or Broker ceasing to be a registered broker-dealer or a member
of the FINRA.
2) Legal Status. The Agreement shall terminate immediately upon the
_____________
termination of the legal existence of Selling Broker-Dealer or the
Agency, or the merger, consolidation, reorganization, dissolution,
receivership or bankruptcy of either, or whenever the Agency is no
longer licensed under law to solicit and procure applications for
Contracts, unless the Agency notifies the other parties in writing at
least thirty (30) days' prior to the occurrence of any of the above
events and obtains written permission to continue on a basis approved
by the other parties.
c) Continuing Obligations. Upon termination of this Agreement, all
_______________________
authorizations, rights and obligations shall cease except (a) the
agreements contained in Articles VI,VII, VIII, IX, and X, Sections 11.4,
11.5, 11.6 and 11.10 hereof; and (b) the obligation to settle accounts
hereunder. Except with respect to records required to be maintained by
Broker pursuant to Rules 17a-3 and 17a-4 under the 1934 Act, Broker
shall return to MLIDC, within 30 days after the Effective Date of
termination, any and all records in its possession which have been
specifically maintained in connection with MLIDC's operations related to
the Contracts.
Section 11.2. Assignability. This Agreement shall not be assigned by either
______________
party without the written consent of the other; provided, however, that MLIDC
may assign this Agreement to its Affiliates at any time. Any purported
assignment in violation of this Section 11.2 shall be void.
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Enterprise Selling Agreement 02-11
Section 11.3. Amendments. No oral promises or representations shall be binding
___________
nor shall this Agreement be modified except by agreement in writing, executed
on behalf of the parties by a duly authorized officer of each of them.
Section 11.4. Notices. All notices, demands and other communications required
________
or permitted to be given to any party under this Agreement shall be in writing
and any such notice, demand or other communication shall be deemed to have been
duly given when delivered by hand, courier or overnight delivery service or, if
mailed, two (2) Business Days after deposit in the mail and sent certified or
registered mail, return receipt requested and with first-class postage prepaid:
(a)If to Broker, to the address on the signature page of this Agreement.
(b)If to MLIDC:
MetLife
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Installations Department
Either party may change its respective notice address by advance written
notice to the other.
Section 11.5. Arbitration.
____________
a) When Arbitration Required. All disputes and differences between the
__________________________
parties, other than those seeking injunctive relief or a restraining
order under this Agreement, or arising with respect to the use of
Customer Information, PHI or Confidential Information under Articles
VIII and IX, must be decided by arbitration in accordance with the rules
of arbitration of the American Arbitration Association, regardless of
the insolvency of either party, unless the conservator, receiver,
liquidator or statutory successor is specifically exempted from an
arbitration proceeding by applicable state law.
b) Initiation of Arbitration. Either party may initiate arbitration by
__________________________
providing written notification to the other party. Such written notice
shall set forth (i) a brief statement of the issue(s); (ii) the failure
of the parties to reach agreement; and (iii) the date of the demand for
arbitration.
c) Arbitration Panel. The arbitration panel shall consist of three
__________________
arbitrators. The arbitrators must be impartial and must be or must have
been officers of life insurance and or securities companies other than
the parties or their affiliates.
d) Selection of Arbitrators. Each party shall select an arbitrator within
_________________________
thirty (30) days from the date of the demand. If either party shall
refuse or fail to appoint an arbitrator within the time allowed, the
party that has appointed an arbitrator may notify the other party that,
if it has not appointed its arbitrator within the following ten
(10) days, an arbitrator shall be appointed on its behalf. The two
(2) arbitrators shall select the third arbitrator within thirty
(30) days of the appointment of the second arbitrator. If the two
arbitrators fail to agree on the selection of the third arbitrator
within the time allowed, each arbitrator shall submit to the other a
list of three (3) candidates. Each arbitrator shall select one name from
the list submitted by the other and the third arbitrator shall be
selected from the two names chosen by drawing lots.
e) Rules; Place for Meetings; Majority Vote. The arbitrators shall
_________________________________________
determine all arbitration schedules and procedural rules. Organizational
and other meetings shall be held in New York, unless the arbitrators
select another location. The arbitrators shall decide all matters by
majority vote.
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Enterprise Selling Agreement 02-11
f) Decision Final. The decisions of the arbitrators shall be final and
_______________
binding on both parties. The arbitrators may, at their discretion, award
costs and expenses, as they deem appropriate, including but not limited
to legal fees and interest. The arbitrators may not award exemplary or
punitive damages. Judgment may be entered upon the final decision of the
arbitrators in any court of competent jurisdiction.
g) Fees and Expenses. Each party shall be responsible for (a) all fees and
__________________
expenses of its respective counsel, accountants, actuaries and any other
representatives in connection with the arbitration and (b) unless the
arbitrators shall provide otherwise, one-half (1/2) of the expenses of
the arbitration, including the fees and expenses of the arbitrators.
Section 11.6. Governing Law. This Agreement shall be governed by and construed
______________
in accordance with the laws of the State of New York without regard to New York
choice of law provisions.
Section 11.7. Entire Understanding. This Agreement and any reference
_____________________
incorporated herein constitute the complete understanding of the parties and
supersedes in its entirety any and all prior and contemporaneous agreements
among the parties with respect to the subject matter discussed herein. No oral
agreements or representations shall be binding.
Section 11.8. Third Party Beneficiaries. Nothing in the Agreement shall convey
__________________________
any rights upon any person or entity, which is not a party to the Agreement.
MLIDC's Affiliates shall be Third Party beneficiaries of this Agreement,
entitled to enforce the provision hereof as if they were a party to this
Agreement.
Section 11.9. Non-Exclusivity. No territory or product is assigned exclusively
________________
hereunder to Broker and Agency and MLIDC reserves the right in its discretion
to enter into selling agreements with other broker-dealers, and to contract
with or establish one or more insurance agencies in any jurisdiction in which
Broker transacts business hereunder.
Section 11.10. Non-Solicitation of Employees and Agents. For purposes of this
_________________________________________
Section 11.10 only, the term "agent" shall include all appointed agents and
Representatives. The parties to this Agreement acknowledge that each may have
access to the names and identities of agents of each party as a result of
performing their respective obligations under this Agreement, and that each may
establish close working relationships with such persons. Therefore:
a) Broker and Agency (for purposes of this Section 11.10, "Selling Group"),
shall not solicit any agent of MLIDC while an agent maintains his/ her
affiliation with MLIDC and for twelve (12) months after termination of
the affiliation. In addition, Selling Group shall not interfere in any
way with the relationships, contractual or otherwise, between MLIDC and
its agents. Selling Group shall not induce or encourage, or attempt to
induce or encourage, any agent of MLIDC to terminate or change his/ her
relationship with MLIDC; and
b) MLIDC shall not solicit any agent of Selling Group while an agent
maintains his/ her affiliation with Selling Group and for twelve
(12) months after termination of the affiliation. In addition, MLIDC
shall not interfere in any way with the relationships, contractual or
otherwise, between Selling Group and its agents. MLIDC shall not induce
or encourage, or attempt to induce or encourage, any agent of Selling
Group to terminate or change his/ her relationship with Selling Group.
Section 11.11. Waiver. The failure of either party to strictly enforce any
_______
provision of this Agreement shall not operate as a waiver of such provision or
release either party from its obligation to perform strictly in accordance with
such provision.
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Enterprise Selling Agreement 02-11
Section 11.12. Counterparts. This Agreement may be executed in counterparts,
_____________
with the same force and effect as if executed in one complete document.
Section 11.13. Severability. If any provision of this Agreement is declared
_____________
null, void or unenforceable in whole or in part by any court, arbitrator or
governmental agency, said provision shall survive to the extent it is not so
declared and all the other provisions of the Agreement shall remain in full
force and effect unless, in each case, such declaration shall serve to deprive
any of the parties hereto of the fundamental benefits of this Agreement.
Section 11.14. Trademarks. Neither party may use the other party's trademarks,
___________
service marks, trade names, logos, or other commercial or product designations
(collectively, "Marks") for any purpose whatsoever without the prior written
consent of the other party.
a) Permission not Implied. Nothing in this Agreement shall be construed as
_______________________
prior written consent to permit (i) any party to use the Marks of the
other party, or (ii) any other individual or entity to use the Marks of
any party.
b) UFS. Nothing contained in this Agreement shall be construed as
____
conferring upon Broker or Representatives any right to use or refer to
in advertising, publicity, promotion, marketing or other activities, any
Marks, or any other designation or likeness of any of the Peanuts(R)
characters or any other character licensed by United Feature Syndicate
(including any contraction, abbreviation or simulation of any kind of
the foregoing) without prior express permission from United Feature
Syndicate, which Broker and Representatives must obtain through Company.
Section 11.15. Preparation of Certificates. Notwithstanding anything to the
____________________________
contrary in this Agreement, Broker and MLIDC shall cooperate fully in the
preparation of and execution of any certificates that may be required by a
regulatory authority or by Applicable Law, in connection with the offer, sale,
and/or servicing of the Contracts.
Section 11.16. Parties' Control of Business and Operations. The performance or
____________________________________________
receipt of services pursuant to this Agreement shall in no way impair the
absolute control of the business and operations of each of the parties and
their respective Affiliates by their own Board of Directors.
Page 20 of 21
Enterprise Selling Agreement 02-11
In reliance on the representations set forth and in consideration of the
undertakings described, the parties represented below do hereby contract and
agree.
"COMPANY"
METLIFE INVESTORS DISTRIBUTION COMPANY
______________________________________
(Distribution Company)
By ___________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ - Vice President
Date
Address:
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
"BROKER DEALER"
______________________________________________
(Broker Firm)
By ___________________________________________
______________________________________________
Print Name & Title
Date
Address:
____________________________________________
____________________________________________
____________________________________________
Fax #:
Page 21 of 21
Enterprise Selling Agreement 02-11
EXHIBIT A
SCHEDULE OF VARIABLE PRODUCT AND COMPENSATION
[TO BE INSERTED]
EXHIBIT B
SCHEDULE OF FIXED PRODUCT AND COMPENSATION
[TO BE INSERTED]
EXHIBIT C
ASSOCIATED INSURANCE AGENCY
The Broker/Dealer named below ("Broker"), having executed a Retail Sales
Agreement (the "Agreement") by and between Broker, and MetLife Investors
Distribution Company (the "Company") dated that, among other things,
provides for sales of Company's or its Affiliates' Contracts through a
designated associated insurance agency or agencies, hereby designates the
associated insurance agency(s) (the "Associated Insurance Agency(s)") named
below as its Agency (as that term is defined in the Agreement) pursuant to
Article III thereof. By signing this Exhibit C, each of Broker and the
Associated Insurance Agency(s) hereby represents and warrants that each of the
Associated Insurance Agency(s) is and will remain qualified to serve as an
Agency in accordance with the terms of the Agreement. Each of the Associated
Insurance Agency(s) hereby acknowledge that it has received a copy of the
Agreement, that it has reviewed the Agreement and understands all of its terms,
covenants and agreements, that it has had the opportunity to consult with
counsel of choice relative thereto and that it agrees to be bound by and
subject to the terms of the Agreement.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT MAY BE ENFORCED BY
THE PARTIES
BROKER/DEALER ASSOCIATED INSURANCE AGENCY NAME
By: ________________________ By:___________________________
____________________________ ______________________________
(Print Name & Title) (Print Name & Title)
Date: Date:
Tax ID: Tax ID:
ASSOCIATED INSURANCE AGENCY NAME ASSOCIATED INSURANCE AGENCY NAME
By:_________________________ By:___________________________
____________________________ ______________________________
(Print Name & Title) (Print Name & Title)
Date: Date:
Tax ID: Tax ID:
