AMENDMENT NO. 2
CHECKING AND FINANCIAL RECORDKEEPING SERVICES AGREEMENT
This Amendment No. 2 To Checking and Financial Recordkeeping Services Agreement (“Amendment No. 2”), dated as of
May 3, 2016 (“Effective Date”), is being entered into by and between BNY Mellon Investment Servicing (US) Inc. (“BNYM”) and Phoenix Life Insurance Company (“Phoenix”).
(under its former name PFPC Inc.) and Phoenix previously entered into that certain Checking and Financial Recordkeeping Services Agreement, dated March 24, 2006 and BNYM (under its former name PNC Global Investment Servicing (U.S.) Inc.) and
Phoenix entered into Amendment No. 1 to Checking and Financial Recordkeeping Services Agreement dated as of August 1, 2009 (collectively, the “Amended Agreement”). On December 13, 2013 Phoenix provided BNYM with email
notice of its intention to renew the Agreement and by its execution of this Amendment No. 2 BNYM is indicating its acceptance of such renewal. Phoenix and BNYM wish to amend the Amended Agreement with this Amendment No. 2 on the terms and
conditions provided for herein.
NOW THEREFORE, in consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree to all statements made above and as follows:
Modifications to Amended Agreement. The Amended Agreement is hereby amended as follows:
||The words “PNC Global Investment Servicing (U.S.) Inc.” shall be deleted in their entirety each place they appear and shall be replaced with “BNY Mellon Investment Servicing (US) Inc.”;|
The term “PNC” shall be deleted each place it appears and shall be replaced with the term
References to “The PNC Financial Services Group, Inc.” shall be deleted each place they appear and
shall be replaced by “The Bank of New York Mellon Corporation”; and
The words “Phoenix Preferred Client” shall be deleted each place they appear and shall be replaced by
(b) Section 2.3 is amended by adding a fourth paragraph thereto which reads in its entirety as follows:
Phoenix shall include in the Phoenix Concierge Account Documentation the checkwriting terms and conditions set forth on Schedule C hereto
(“Checkwriting Terms”). Each party to the Checkwriting Terms will be obligated in accordance with its terms. BNYM may amend Schedule C by delivering an amended Schedule C to Phoenix in accordance with Section 10.3 (Notices). BNYM
represents and warrants that Schedule C will at all times contain commercially reasonable terms and conditions governing checkwriting that Agent establishes for all its checkwriting customers generally, as applicable to Phoenix Concierge Accounts.
(c) The fourth sentence of Section 3.1.1 is deleted and replaced in its entirety by the following:
Subject to available defenses against the Customer, BNYM shall have responsibility, and will indemnify, defend and hold Phoenix harmless from
Losses, resulting from the improper payment of a Check (i) that is paid by Agent over an effective stop payment order, or (ii) is $6,000 or more in amount, bears a forged or unauthorized drawer signature or has been altered, and is paid by
Agent due to Agent’s grossly negligent review of the Check.
(d) Section 3.1.6 is deleted and replaced in its entirety by the following:
3.1.6. Provisioning of Program Supplies. BNYM will take reasonable measures to arrange for a check vendor reasonably
acceptable to Phoenix (“Check Vendor”) (i) to mail to each Customer opening a Phoenix Concierge Account on the BNYM Business Day next following the BNYM Business Day that the Phoenix Concierge Account was opened: (A) a checkbook cover
furnished by the Check Vendor, (B) an initial supply of blank Checks furnished by the Check Vendor meeting specifications established by BNYM from time to time and agreed to by Phoenix, such agreement not to be unreasonably withheld,
conditioned or delayed (“Blank Checks”), (C) account agreements, privacy statements and other account materials (“Program Materials”) and (D) an account opening statement printed by the Check Vendor using data furnished by
BNYM, and (ii) to make available to such Customers additional supplies of Blank Checks as reasonably requested by the Customers. Program Materials shall contain content (i) furnished by Phoenix, and (ii) approved by BNYM to the extent approval
is provided for in this Agreement. BNYM shall be responsible for printing the Program Materials and furnishing sufficient quantities of such printed materials to the Check Vendor for the mailing described above, or for furnishing stationary to the
Check Vendor in sufficient quantities to permit the Check Vendor to print the Program Materials for the mailing described above, in each case as the parties shall agree from time to time. BNYM will monitor the performance of the Check Vendor,
furnish reports of such performance to Phoenix monthly or at such other frequency as Phoenix and BNYM shall reasonably agree, and discuss with the Check Vendor any comments of Phoenix regarding the Check Vendor’s performance. BNYM’s duties
with respect to the Check Vendor shall solely and exclusively be those expressly stated in this Section 3.1.6. Phoenix shall solely be responsible for all charges of the Check Vendor and all associated supplies.
(e) Section 3.4 is deleted and replaced in its entirety by the following:
3.4 Customer Services. BNYM will maintain an adequate staff of trained personnel to service customer inquiries related
to the services provided by BNYM hereunder, including a toll-free telephone number for use by Customers from 8:00 a.m. to 5:30 p.m., Eastern time, during each BNYM Business Day.
(f) Section 5 is deleted and replaced in its entirety by the following:
5. Clearing and Settlement: Collections from Customers.
5.1 Clearing Account. BNYM will establish an account with Agent on behalf of Phoenix pursuant to documentation found
reasonably satisfactory to Agent for use by Agent in the clearance and settlement of daily outstanding settlement balances between Phoenix and BNYM relating to Customer Transactions and for payment of service charges and reimbursements between
Phoenix and BNYM (“Clearing Account”). On each BNYM Business Day, Phoenix will wire sufficient funds to the Clearing Account, using the Fedwire system, to fully satisfy and fund the outstanding settlement balance between Phoenix and BNYM.
In the event Phoenix fails to comply on any BNYM Business Day with the foregoing requirement, BNYM may do any one or more of the following at its election: (a) terminate this Agreement with a five-day
advance written notice to Phoenix, (b) require Phoenix to pay the amount due on the next succeeding BNYM Business Day
plus an additional amount equal to the Float, and (c) until such failure is fully cured with respect to the then-current BNYM Business
Day and all prior BNYM Business Days and until all amounts required by clause (b) have been paid, refuse to pay due to insufficient funds any Checks presented to it that BNYM Business Day or thereafter for payment processing and return such
Checks through banking channels to the bank of deposit on the grounds of insufficient funds. Any remedy chosen by BNYM pursuant to this Section 5.1 shall not preclude BNYM from pursuing other remedies under the Agreement.
5.2 Collections from Customers. BNYM will be responsible for debiting the Customer’s Concierge Account, and
otherwise collecting from each Customer, amounts that BNYM properly charges against the Clearing Account; however, for clarification, Phoenix’s wire payment obligation under Section 5.2 is not mitigated or conditioned to any extent by this
(g) Section 8.5 is deleted and replaced in its entirety by the following:
8.5 Limitation of Liability.
8.5.1. Damage Limitation. BNYM’s maximum aggregate cumulative liability to Phoenix and all persons or entities
claiming through Phoenix, considered as a whole, for all Loss, the recovery of which is not excluded by another provision of this Agreement, including all indemnification obligations, shall not exceed the lesser of: (i) the fees actually paid
to BNYM by Phoenix for services provided hereunder during the twelve (12) full calendar months immediately prior to the last Loss Date; or (ii) $400,000.
8.5.2. Events Beyond Reasonable Control. Notwithstanding any other provision and for all purposes of this Agreement:
Neither party nor its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether
foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control, including without limitation: extraordinary forces of nature and natural disasters, such as floods, hurricanes, severe
storms (storms with a destructive force substantially equivalent to hurricanes but not meeting technical criteria necessary for hurricane designation), tornados, earthquakes and wildfires; national or local states of emergencies; epidemics; action
or inaction of civil or military authority; war, terrorism, riots or insurrection; criminal acts; job action by organized labor, building or area evacuations ordered by lawful authority; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities; denial of service attacks; non-performance by third parties (other than subcontractors of BNYM for causes other than those described herein); or
functions or malfunctions of the internet, firewalls, encryption systems or security devices caused by any of the foregoing.
8.5.3. Consequential Damages. In no event shall either Party, its affiliates or any of its or their directors,
officers, employees, agents or subcontractors be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for
any other losses which are not direct damages regardless of whether such losses were or should have been foreseeable and regardless of whether any entity has been advised of the possibility of such losses. For clarification: this provision shall be
interpreted to prevail over all other sections of the Agreement.
8.5.4. Limitation to Described Services. BNYM
shall be responsible for performing only the services expressly provided for in this Agreement or in a written amendment as may be specifically agreed to by BNYM and Phoenix.
(h) The following indemnification provisions shall be modified as follows:
(1) The fifth sentence of Section 3.1.1. shall be deleted and replaced in its entirety with the following (underlying indicates added
Phoenix shall have responsibility, and will indemnify, defend and hold BNYM, the Agent and their respective officers,
directors, employees and agents harmless from Losses, with respect to a Check described in Section 3.1.2. and, except as described in the preceding sentence, shall have responsibility with respect to the improper payment of any Check that bears
a forged or unauthorized drawer signature or that has been altered, all subject to available defenses against the Customer.
(2) The second
sentence of Section 3.1.2. shall be deleted and replaced in its entirety with the following (underlying indicates added language):
Phoenix will indemnify, defend and hold BNYM, the Agent and their respective officers, directors, employees and agents harmless from any
Losses incurred by BNYM arising out of Agent’s payment or non-payment, as applicable, of such Check.
(3) The third sentence of Section 3.1.8. (the Section 3.1.8. that immediately follows Section 3.1.7.) shall be deleted and
replaced in its entirety with the following (underlying indicates added language):
Phoenix will be responsible for, and will indemnify,
defend and hold BNYM, the Agent and their respective officers, directors, employees and agents harmless from, (i) any Losses caused in whole or in part by Phoenix’s failure to observe or carry out its own security procedures, and
(b) any Losses relating to the granting or maintenance of Check Transaction privileges or the ordering and delivery of checks, which Losses are caused in whole or in part by the negligence, defalcations or dishonest acts of Phoenix’s
employees or agents.
(4) The second sentence of Section 3.3 shall be deleted and replaced in its entirety with the following
(underlying indicates added language):
Phoenix will be responsible for, and will indemnify, defend and hold BNYM, the Agent and their
respective officers, directors, employees and agents harmless from, any Losses caused in whole or in part by BNYM’s or the Agent’s following of Phoenix’s instructions to restrict or eliminate Transactional privileges for particular
(5) Section 8.1 shall be amended by adding the following sentence to the end:
BNYM’s indemnification obligations under the Agreement represent Phoenix’s sole and exclusive rights and remedies against BNYM for
any claim for damages arising under the Agreement.
(6) Section 8.2. shall be deleted and replaced in its entirety with the following
(underlying indicates added language):
8.2 Phoenix Indemnification of BNYM. Phoenix will indemnify, defend and hold harmless BNYM,
the Agent and their respective officers, directors, employees and agents, for all Losses arising out of or related to (a) Phoenix’s gross negligence, willful misconduct or material breach of the terms of this Agreement, except to the
extent such breach is attributable to BNYM’s or Agent’s negligent actions or omissions; (b) BNYM’s or Agent’s following of Phoenix’s
instructions or Phoenix’s entry of incorrect information into BNYM’s or Agent’s systems; (c) the operation and procedures
applicable to Customers’ Phoenix Concierge Accounts; (d) violations of any federal or state securities laws, regulation, or order, or of the rules of any self-regulatory organization, except to the extent such violations are attributable
to BNYM’s or the Agent’s negligent acts or missions; (e) any dispute based on false advertising claims related to portions of torms and materials for which portions BNYM’s approval is not required under Section 2.3.2.
hereof; and (f) all actions taken or omitted by BNYM or the Agent as agent of Phoenix pursuant to this Agreement except to the extent an action or omission constitutes a negligent act or omission. Phoenix’s indemnification obligations
under the Agreement represent BNYM’s (and Agent’s) sole and exclusive rights and remedies against Phoenix for any claim for damages arising under the Agreement.
(i) The second and third sentences of Section 9.1 are deleted and replaced in its entirety with the following:
This Agreement shall automatically renew for successive additional terms of three years commencing on the final day of the Initial Term and
continuing on the final day of each successive 3-year anniversary of the final day of the Initial Term (each such additional 3-year term being a “Renewal
Term”), unless Phoenix or BNYM gives written notice of its intent not to renew and such notice is received by the other party not less than one hundred eighty (180) days prior to the expiration of the Initial Term or the then-current
Renewal Term (a “Non-Renewal Notice”). In the event a party provides a Non-Renewal Notice, this Agreement shall terminate on the last day of the Initial Term or then-current Renewal Term, as
applicable, or, if later and applicable, the later of the day substantially all services cease to be provided under the Agreement or the date the transfer of all records that Phoenix requests be transferred in connection with a termination is
(j) Section 10.1 is deleted and replaced in its entirety with the following:
10.1 Confidentiality. The parties shall be bound by the terms of Schedule D with respect to confidentiality and
the other provisions set forth in Schedule D.
(k) Section 10.3 is deleted and replaced in its entirety with the following:
10.3.1. Unless otherwise provided herein, all notices required or permitted to be given hereunder must be (i) in writing
and signed by an Authorized Person (“Written Notice”), or (ii) contained in or attached as an image to an email sent by an Authorized Person or a person reasonably believed to be an Authorized Person (“Email Notice”).
10.3.2. A Written Notice shall be deemed given and received when addressed as specified in Section 10.3.4. and delivered:
by hand to the recipient and signed for by the recipient or an administrative assistant to the recipient;
by the U.S. Postal Service as first-class registered mail, postage prepaid, with return receipt or other
delivery verification provided;
by UPS or Federal Express, with signature of recipient or authorized mail clerk; or
by facsimile sending device providing for automatic confirmation of receipt.
10.3.3 An Email Notice shall be deemed given and received when sent to the email address specified in Section 10.3.4. and
the recipient confirms receipt of the email by sending a response email with the Email Notice included in the response email.
10.3.4. The parties shall use the addresses set forth below for the notices described in Sections 10.3.2. and 10.3.3., or
such other addresses as may be specified by a party in a writing complying with this Section 10.3:
||Phoenix Life Insurance Company|
||XX Xxx 00000|
||Xxxxxx, XX 00000-0000|
||Attention: Xxxx Xxxxxx|
||Email Address: Xxxx.Xxxxxx@XxxxxxxXX.xxx|
|With a copy to:
||Phoenix Life Insurance Company|
||Xxx Xxxxxxxx Xxx|
||Xxxxxxxx, XX 00000-0000|
||Attention: General Counsel|
||BNY Mellon Investment Servicing (US) Inc.|
||000 Xxxxxxxx Xxxxxxx|
||Xxxxxxxxxx, XX 00000|
||Attention: Xxxxx Xxxxxx|
(l) The last sentence of the first paragraph of Section 10.8 is modified by deleting the words “a Phoenix” and
replacing it with the words “an entity”.
(m) Section 10.16 is deleted and replaced in its entirety by the following:
10.16 Entire Agreement. The Original Agreement together with the Amendments state the entire agreement between the
parties with respect to the Phoenix Concierge Account Program, and all prior or contemporaneous written or oral agreements and understandings are merged herein and superseded hereby; provided, however, the rights and obligations of the
parties under the Agreement as of any particular date during its effectiveness shall be determined exclusively by reference to the terms of the Agreement as it may have been cumulatively amended through such determination date (for purposes of
clarity: an amendment to the Agreement shall apply on and after its effective date and is not to have or be given retroactive application).
(n) A new
Section 10.17 is added which reads in its entirety as follows:
10.17. Additional Services. Phoenix agrees
that it is solely and exclusively responsible for compliance with all abandoned property and escheat laws and regulations applicable to the activities contemplated by this Agreement and that BNYM has no duties or responsibilities with respect to
such compliance. BNYM’s sole duty with respect to any files, reports or other data or information (“Materials”) requested by Phoenix is to prepare the Materials and deliver the Materials to Phoenix; BNYM makes no representations or
warranties that any Materials furnished to Phoenix will comply with any abandoned property or escheat law or regulation and shall have no duty to investigate or research such matters even if Phoenix informs BNYM that requested Materials will be used
for such compliance purposes. In the event Phoenix requests that BNYM provide any Materials or service not otherwise provided under this Agreement as of the Effective Date of Amendment No. 2 (“Requested Item”), unless Phoenix and BNYM
otherwise agree in writing with respect to the Requested Item, BNYM will engage in commercially reasonable efforts to design, develop and implement the
Requested Item if BNYM in its discretion exercised reasonably determines such design, development and implementation to be commercially
reasonable (including the reasonable commercial availability of appropriate technology) and Phoenix shall pay to BNYM upon being invoiced for same all reasonable fees and charges assessed by BNYM for such design, development or implementation
efforts and any ongoing service fees related to preparing and delivering the Requested Item and shall reimburse BNYM for any related out-of-pocket expenses reasonably
(o) A new Section 12 which reads in its entirety as follows shall be added:
12. Matters Relating to U.S. Anti-Money Laundering Laws.
12.1 Phoenix acknowledges and agrees that Customers are customers of Phoenix only, and are not customers or joint customers of
12.2 Phoenix will, after appropriate suspicious activity detection and review activities, report suspicious
activity to the Financial Crimes Enforcement Network as required under applicable law.
12.3 Phoenix will obtain
appropriate identity information from all persons claiming to be a beneficiary of a life insurance policy issued by Phoenix or an affiliate of Phoenix (a “Claimant”) prior to approving a Claimant as a Customer. With respect to Claimants
that are natural persons (“Natural Person Claimants”), Phoenix will obtain information in the following four data sets: (i) name; (ii) date of birth; (iii) residential address; and (iv) Tax ID or social security number.
Prior to approving a Natural Person Claimant as a Customer, Phoenix will utilize a third party commercial database to attempt to validate the above four data sets for the Natural Person Claimant. In the event Phoenix cannot validate the above four
data sets for a Natural Person Claimant through the commercial database, it will attempt to validate the above four data sets for the relevant Natural Person Claimant by utilizing other means of publically available data or require documentary
evidence from the Natural Person Claimant (e.g., government issued identification, Social Security card). In order to validate identity information for persons not natural persons claiming to be beneficiaries of a life insurance policy
issued by Phoenix or an affiliate of Phoenix (“Entity Claimant”) including without limitation (i) trusts, trustees, grantors, settlors, and trust beneficiaries, (ii) corporations, directors, managing members, and
(iii) partnerships, general partners, Phoenix will require the Entity Claimant to complete an appropriate certification and acknowledgement of entity organization, structure or form such as a trust agreement certification, corporate resolution,
or partnership authorization.
(p) A new Section 13 which reads in its entirety as follows shall be added:
13. Requests to Transfer Information to Third Parties. In the event that Phoenix requests or instructs BNYM to send, deliver, mail,
transmit or otherwise transfer to a third party, or to make available to a third party for retrieval from within the BNYM System, any information in the BNYM System (as defined below) that is owned by Phoenix: BNYM may decline to provide the
information requested on the terms contained in the request due to legal or regulatory issues, confidentiality or privacy restrictions, transmission specifications not supported by BNYM, or other good faith or bona fide business reasons, but will in
good faith discuss the request and attempt to accommodate Phoenix with respect to the request, and BNYM will not be obligated to act on any such request unless it agrees in writing to the terms of the information transfer. In the event BNYM so
agrees in writing to transfer information or make it available within the BNYM System: Phoenix shall pay a fee for such activities determined by BNYM to be commercially reasonable upon being invoiced for same by BNYM; BNYM shall have no liability or
duty with respect to such information after it releases the information or makes it available within the BNYM System, as the case may be;
and BNYM shall be entitled to the indemnification provided for at Section 8.2 in connection with the activities contemplated by any such
written information transfer request as if such activities were listed as clause (f) of said Section 8.2. “BNYM System” means all hardware, peripherals, software, interfaces, applications, functionalities and intellectual
property of whatsoever nature constituting all or a part of the transaction processing and recordkeeping system utilized by BNYM to provide the services contemplated by the Agreement.
(q) A new Section 14 which reads in its entirety as follows shall be added:
14. Insurance. During the term of this Agreement, BNYM will carry and maintain the following insurance coverages, evidence of which will
be furnished to Phoenix upon execution of this contract, annually on the anniversary of the contract and within 30 days of a change in insurance coverage. Phoenix Life Insurance Company shall be designated as an additional insured.
a. Commercial General Liability
With contractual liability, personal and advertising injury and cyber security coverage.
$4,000,000 products completed operations aggregate
$4,000,000 general aggregate
b. Commercial Automobile Liability
All owned, non-owned, and hired autos.
combined single limit
c. Employer’s Liability
$500,000 disease – policy limit
$500,000 disease – each
(r) A new Section
15 which reads in its entirety as follows shall be added:
15. Inspection of Records. Once annually for one business day, BNYM shall
permit Customer and its regularly engaged firm of independent auditors, upon not less than 30 days’ advance notice, together and not separately, during BNYM’s normal business hours, to examine on the premises of BNYM reasonably designated
by BNYM: (i) print-outs of records maintained by BNYM (excluding Bank) pursuant to this Agreement to the extent print-outs of such records are supported by the BNYM recordkeeping system at the time of the examination, and (ii) operating
procedures of BNYM (not Bank) utilized by BNYM to provide the services provided hereunder by BNYM (not Bank).
(s) A new Section 16 which reads in
its entirety as follows shall be added:
16. Certification of XXX Xxxxxx. XXX Xxxxxx certifies that, in accordance with 18 U.S.C.
Section 1033, it will not assign any individual to provide services under this Agreement who has
ever been convicted of, or pled guilty or nolo contendere to a felony, or an offense under federal or state law, involving dishonesty or
breach of trust, unless the individual has received an appropriate waiver from the relevant Insurance Department. If an individual has obtained a waiver and BNY Mellon is assigning that person to provide services under this Agreement, BNY Mellon
will provide the Company with assurance of having obtained such waiver from the relevant Insurance Department prior to assigning the individual to provide services under this Agreement.
(t) Schedule A is amended:
By deleting the definition of “Agreement” and replacing it in its entirety with the following:
“Agreement” means the Original Agreement as amended by the Amendments.
By deleting the definition of Amendment No. 1; and
By adding the following definitions at the end thereof:
“Amendments” means, collectively, Amendment No. 1 To Checking and Financial Recordkeeping Services Agreement, dated as of
August 1, 2009, by and between BNYM and Phoenix, and Amendment No. 2 To Checking and Financial Recordkeeping Services Agreement, dated as of May 3, 2016, by and between BNYM and Phoenix.
“Authorized Person” means a person reasonably believed by one party to the Agreement to be authorized to act on behalf of the
other party to the Agreement and such other persons as a party shall specify in a writing delivered in accordance with Section 10.3 as authorized to act on its behalf.
(u) Schedule B is amended by deleting in its entirety the caption “Customer Management Suite” and all provisions under the caption “Customer
Management Suite” up to but not including the caption “Treasury Management Services” and replacing such deleted provisions with the following:
Customer Management Suite:
Fees for first four seats, which are available for any use, and a fifth seat dedicated to the use of the
Phoenix AML Officer are included in Active Account Fee.
(v) A new Schedule C is added and attached to this Amendment No. 2, dated
May 3, 2016, between Phoenix and BNY Mellon.
(w) A new Schedule D is added which and attached to this Amendment No. 2, dated May 3, 2016,
between Phoenix and BNY Mellon.
2. Remainder of Amended Agreement. Except as specifically modified by this Amendment No. 2, all terms and
conditions of the Amended Agreement shall remain in full force and effect.
3. Incorporation By Reference. The governing law of the Amended
Agreement shall be the governing law of this Amendment No. 2.
4. Entire Agreement. This Amendment No. 2 constitutes the final, complete, exclusive and fully integrated record of the agreement of the parties
with respect to the subject matter herein and the amendment of the Amended Agreement with respect to such subject matter.
5. Facsimile Signatures;
Counterparts. This Amendment No. 2 may be executed in one more counterparts; such execution of counterparts may occur by manual signature, facsimile signature, manual signature transmitted by means of facsimile transmission or manual
signature contained in an imaged document attached to an email transmission; and each such counterpart executed in accordance with the foregoing shall be deemed an original, with all such counterparts together constituting one and the same
instrument. The exchange of executed copies of this Amendment No. 2 or of executed signature pages to this Amendment No. 2 by facsimile transmission or as an imaged document attached to an email transmission shall constitute effective
execution and delivery hereof and may be used for all purposes in lieu of a manually executed copy of this Amendment No. 2.
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be executed by their duly authorized officers, as of the day and year first above written.
|BNY Mellon Investment Servicing (US) Inc.
||Phoenix Life Insurance Company|
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Assistant Vice President
CHECK WRITING SERVICES AGREEMENT
Terms and Conditions
Information. Subject to the exclusions set forth in Section 3, all information disclosed by one party (“Discloser”) to the other party (“Recipient”) shall be deemed to be (“Confidential
Information”), including, without limitation: (a) all knowledge or information concerning the business, operations and assets of the parties hereto and their respective Affiliates, such as: internal operating procedures; investment
procedures; sales data and customer lists; financial plans, projections and reports; and insurance and investment company programs, plan and products; (b) all property owned, licensed and/or developed by or for the parties, their respective
Affiliates or their respective clients, such as computer systems, programs, software and devices, plus information about the design, methodology and documentation therefor; (c) information about or personal to the parties, their respective
Affiliates or the insureds, employees, agents and applicants (for jobs or products) of any of the foregoing; (d) information, materials, products or any other tangible or intangible assets in the possession or the control of the parties or
their Affiliates which is proprietary to, or confidential to or about, any other person or entity; (e) proprietary or confidential information, including Regulated Information (as defined below), obtained from persons or entities conducting
business with the parties or their Affiliates in any capacity; (f) records and repositories of all of the foregoing, in whatever form maintained; (g) analyses, compilations, forecasts, studies and other documents incorporating any of the
foregoing, irrespective of who has prepared such. Confidential Information shall include information obtained by Discloser from another party, which Discloser treats or is obligated to treat as confidential.
2. Privacy Laws. Company acknowledges that Phoenix is regulated as a financial institution under federal and state privacy laws.
Company may receive information that is nonpublic personal information as defined under federal and state privacy laws (“Regulated Information”). Company agrees (a) that it will maintain the confidentiality of Regulated Information
and will not use it other than to carry out the purposes for which it was disclosed to Company, or for any purpose that is prohibited under applicable law and; (b) that it will not, directly or through an affiliate, disclose Regulated
Information to any other person that is a nonaffiliated third party of Phoenix or Company, unless such disclosure would be lawful if made directly to such other person by Phoenix.
3. Exclusions. With the exception of Regulated Information, which shall be protected in all circumstances, the term Confidential
Information does not include information that can be proven to have been independently developed by Recipient, as evidenced by contemporaneous written and dated records, without using any of Discloser’s Confidential Information (regardless of
source) or breaching this Agreement or that: (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) is independently known by Recipient without
obligation of confidentiality at the time of receiving such information; (c) is hereafter furnished to Recipient by a third party, without a breach of any obligation and without restriction on disclosure provided that the Recipient does not
know or have reason to know that such third parties are prohibited by contractual, legal or fiduciary obligation from transmitting the information; or (d) is the subject of a prior written permission to disclose provided by Discloser.
4. Restrictions/Obligations. Recipient agrees to hold Discloser’s Confidential Information in trust and confidence, using its best
efforts, and without in any way limiting the foregoing, shall: (i) only disclose the Confidential Information to applicable regulatory authorities as set forth in Section 5 as well as those employees, contractors and, with a need to know;
provided, that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement; (ii) not disclose any Confidential Information to any third party, without the prior written consent of
Discloser; (iii) use such Confidential Information only to the extent required to accomplish the intended purpose(s); (iv) not reproduce, summarize or distribute Confidential Information in any form except as required to accomplish the intended
(v) not reverse engineer, decompile, or disassemble any software code disclosed by Discloser; (vi) not directly or indirectly export or transmit any
Confidential Information to any country to which such export or transmission is restricted by regulation or statute; and (vii) promptly provide Discloser with notice of any actual or threatened breach of the terms of this Agreement. Each party
agrees not to disclose any Regulated Information to the other unless such information is provided in an encrypted format.
Disclosures. In the event a party or its Affiliate is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or process) to disclose any Confidential Information of
the other party or such party’s Affiliates, the party required to disclose such information shall provide the other party with prompt notice of any such request or requirement (written, if practicable), unless such notice is prohibited by
statute, rule or court order, so such other party may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or other remedy or the receipt of a waiver hereunder, a
party is compelled to disclose Confidential Information of the other party, or its Affiliates, the party required to disclose may disclose that portion of such Confidential Information which it is compelled to disclose and shall exercise reasonable
efforts to obtain assurance that confidential treatment will be accorded to that portion of such Confidential Information which is being disclosed. In any event, the disclosing party will not oppose any action by the other party or such party’s
Affiliates to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
6. Ownership/Legend. Neither party shall acquire any right, title or interest in the Confidential Information disclosed herein.
Confidential Information (including copies thereof) shall be returned (or, at Discloser’s option, be certified destroyed) upon written request or upon expiration of Recipient’s need for the Confidential Information, and in any event, upon
completion or termination of this Agreement. No rights or licenses to trademarks, inventions, copyrights, patents, or other intellectual property rights, are implied or granted under this Agreement. Discloser reserves without prejudice, the ability
to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein. In the event that Confidential Information is or becomes the subject of a patent application, patent, copyright or other
proprietary right, Recipient agrees and understands that Discloser will have all the rights and remedies available to it under the law as a result of said patent application, patent, copyright or other proprietary right. Recipient shall not remove
any proprietary rights legend from, and shall, upon Discloser’s reasonable request, add any proprietary legend to, materials disclosing or embodying Confidential Information.
7. Disclaimer. Recipient acknowledges that Confidential Information may still be under development, or may be incomplete, and that such
information may relate to products that are under development or are planned for development. DISCLOSER MAKES NO WARRANTIES REGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION, AND ACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES, OR OTHER
INJURY TO RECIPIENT OR ANY OTHER PARTY AS A RESULT OF RECIPIENT’S RECEIPT OR USE OF CONFIDENTIAL INFORMATION. RECIPIENT AGREES THAT DISCLOSER SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING FROM OR RELATING TO RECIPIENTS’ USE OF OR
INABILITY TO USE CONFIDENTIAL INFORMATION. DISCLOSER MAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL INFORMATION.
8. Equitable Remedies. Recipient acknowledges that monetary damages may not be a sufficient remedy for unauthorized use or disclosure
of Confidential Information or any breach or threatened breach of this Agreement, and that Discloser shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as may be deemed proper by a court of
competent jurisdiction. Recipient shall not urge, as a defense to any proceeding for such specific performance or injunctive relief, that Discloser has an adequate remedy at law. Notwithstanding anything in this Agreement to the contrary,
(i) no party shall be liable to any other party for any consequential, special or indirect losses or damages that a party, may incur or suffer by or as a consequence of another party or its affiliate’s performance hereunder, whether or not
the likelihood of such losses or damages was known by the party or their affiliates
9. Miscellaneous. This Agreement constitutes the entire Agreement between the parties and supersedes all prior or contemporaneous oral
or written agreements regarding the subject matter hereof. This Agreement shall be governed by the laws of the State of Delaware. The term of this Agreement shall run concurrently with the term of the Services Agreement. In the event of such
termination, any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled. Any addition or modification to the Agreement must be in writing and signed by both parties. No agency or partnership is
implied or created between the parties by this Agreement. Failure, delay, or partial exercise by either party in exercising any right, power, or privilege hereunder shall not be construed as a waiver thereof or of any other rights, powers, or
privileges. If any part of this Agreement shall be held to be void or unenforceable such part shall be treated as severable, leaving valid the remainder of the Agreement. No waiver of any provision of this Agreement shall be effective unless
contained in writing executed by the party against whom enforcement is sought. A waiver of any specific term hereof shall not be deemed to imply or constitute a waiver of the same of any other term on any other occasion. This Agreement shall be
binding upon and inure to the benefit of each party’s respective successors and lawful assigns; however, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or
in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.
Additional Obligations. The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information Each party shall each be liable hereunder for the actions and inactions of itself, and
its and such respective entities’ officers, directors, employees, advisers and representatives, all of whom shall be required by the respective party to abide by the provisions of this Agreement as though made parties hereto.
11. Definition of Affiliate. “Affiliate” shall mean a person that directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with another person or beneficially owns or has the power to vote or direct the vote of twenty-five (25%) percent or more of any class of voting stock (or of any form of voting equity interest in
the case of a person that is not a corporation) of such other person. For purposes of this definition and the following, “control”, including the terms “controlling” or “controlled”, means the power to direct or cause
the direction of the management and policies of a person, directly or indirectly, whether through the ownership of securities or partnership or other ownership interest, by contract or otherwise.