SELLING AGREEMENT
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BY AND AMONG
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RIVERSOURCE LIFE INSURANCE COMPANY,
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RIVERSOURCE DISTRIBUTORS, INC.
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AND
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AMERIPRISE FINANCIAL SERVICES, INC.
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This SELLING AGREEMENT ("Agreement") dated January 1, 2007 ("Effective Date")
is by and among RIVERSOURCE LIFE INSURANCE COMPANY ("Company"), RIVERSOURCE
DISTRIBUTORS, INC. ("Distributor")(together with Company, "RiverSource"), and
AMERIPRISE FINANCIAL SERVICES, INC. (referred to herein as "Broker-Dealer" and
"Agency" depending on the capacity in which it is acting). Distributor joins
this Agreement in its role as principal underwriter of Company's variable
annuity and variable life insurance policies ("Variable Contracts") only.
RECITALS
The purpose of this Agreement is to establish the terms and conditions under
which Broker-Dealer and Agency will market and sell those insurance products
issued by the Company, as agreed to by the parties, which may include variable
annuity contracts, variable life insurance policies, fixed annuity contracts,
fixed life insurance policies, disability income insurance, long term care
insurance, and other kinds of insurance products.
In consideration of the mutual covenants contained herein, the parties agree
as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
1.1 "AGENCY" is an insurance agency licensed in one or more states.
For purposes of this Agreement, Agency and Broker-Dealer are the
same corporate entity but obligations and duties are delineated as
between Agency and Broker-Dealer where appropriate.
1.2 "AUTHORIZED SELLING FIRM" means the Broker-Dealer taken together
with the Agency, with respect to the sale of Products under this
Agreement, in accordance with the terms and conditions of the SEC
no-action letter First of America Brokerage Service, Inc. (dated
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September 28, 1995).
1.3 "BROKER-DEALER" is an entity duly registered as a broker-dealer
with the Securities and Exchange Commission ("SEC"), the National
Association of Securities Dealers ("NASD"), and states where
required.
1.4 "COMPANY RULES" mean any written instructions, bulletins, manuals,
training materials, and any underwriting or suitability guidelines
provided to Authorized Selling Firm by the Company.
1.5 "CONTRACT" is the annuity or insurance policy validly issued by
Company to a purchaser meeting underwriting standards of the
Company.
1.6 "PRODUCER" is a duly licensed individual who sells Products as an
employee or independent contractor of Agency and who is
appropriately registered with the NASD and licensed and appointed
in accordance with all applicable insurance laws; this definition
includes, as applicable, a licensed assistant, who is
appropriately registered with the NASD and who assists Producer in
providing services for Products.
1.7 "PRODUCTS" are those annuity and insurance products issued by
Company which will be marketed, sold, or serviced by Agency,
Broker-Dealer and their Producers under this Agreement.
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1.8 "REPLACEMENT" is the sale of a Product which is funded by the
purchaser with money obtained from the liquidation of another life
insurance policy or annuity contract.
1.9 "TERRITORY" may be any 49 of the 50 United States (all states
other than New York), and the District of Columbia, but includes
only those jurisdictions in which Agency is authorized to market
and sell the Products under this Agreement.
2. TERM OF AGREEMENT. This Agreement shall remain in effect beginning upon
the Effective Date until it is terminated in accordance with Section 9,
"Termination."
3. APPOINTMENT AND AUTHORIZATION OF AGENCY AND BROKER-DEALER.
3.1 APPOINTMENT AND AUTHORIZATION OF AGENCY AND BROKER-DEALER. Company
and Distributor appoint Agency and authorize Broker-Dealer to
solicit sales of and sell Products in accordance with the terms
and conditions of this Agreement as an Authorized Selling Firm.
Agency and Broker-Dealer accept the appointment and authorization.
These appointments, taken together, constitute the appointment of
Authorized Selling Firm. Authorized Selling Firm's authority is
nonexclusive and is limited to the performance of the services and
responsibilities set forth in this Agreement.
4. DUTIES, OBLIGATIONS AND LIMITATIONS OF AUTHORIZED SELLING FIRM.
Authorized Selling Firm will perform all of Authorized Selling Firm's
duties within the scope of the agency relationship created under this
Agreement. Authorized Selling Firm's duties shall include, but not be
limited to, the following:
4.1 Authorized Selling Firm will be responsible for managing and
supervising Producers, including licensed assistants, in selling
Company Products;
4.2 Authorized Selling Firm may recruit additional Producers to sell
under the supervision of Authorized Selling Firm and to perform
telephone transactions for any Contract owner prior to being
appropriately registered with the NASD as a representative of the
Broker-Dealer;
4.4 Agency shall be responsible for the preparation and submission of
licensing forms and the assurance that all Producers recruited by
Authorized Selling Firm are appropriately licensed as insurance
agent in the state(s) where such Producers will solicit and sell
Products. Broker-Dealer shall be responsible for the preparation
and submission to the NASD of representative registration forms
and the assurance that all Producers and licensed assistants are
and remain registered as representatives of Broker-Dealer with the
NASD. Authorized Selling Firm shall be responsible for
investigating the character, work experience and background of any
proposed Producer, in accordance with applicable rules and
regulations, and upon request will provide Company with copies of
such investigations. Authorized Selling Firm shall recommend
Producers for appointment with Company, but Company shall retain
sole authority to make appointments and may, at its discretion,
refuse to permit any Producer to solicit contracts for the sale of
the Products; provided that Company will notify Authorized Selling
Firm of any such refusal in a timely manner. Company shall be
responsible for the preparation and submission of appointment
forms and the payment of appointment fees in those states that
require the Company to appoint Producers;
4.5 Authorized Selling Firm will comply with all Company Rules and
with all applicable federal and state laws and regulations, and
cause its Producers to do the same. Authorized Selling Firm will
be provided with the Company Rules which may be changed by Company
at its sole discretion, and Authorized Selling Firm shall have
twenty days following being provided with changes to the Company
Rules to comply with changes to the Company Rules;
4.6 Authorized Selling Firm shall assist Producers in responding to
customer inquiries on Products sold or serviced under this
Agreement to ensure that Producers provide Product applicants
sufficient information and disclosures to ensure the suitability
of any Replacement. In addition to information required under
applicable state insurance laws and regulations, the following
information shall be disclosed to applicants: all fees,
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expenses and possible charges, such as surrender charges, on both
the new and the surrendered investments; any change in the
investment risk to the Product applicant; any change in the nature
or the provider of any guarantees associated with the Product
and/or the surrendered product;
4.7 notifying Company if any Agency or Producer fails to maintain the
required state insurance license or ceases to be a registered
representative of Broker-Dealer;
4.8 on the use of electronic and automated Web-based order-entry,
processing, servicing and administration systems, Authorized
Selling Firm shall ensure that adequate supervision and security
and access controls are in place to prevent the improper,
unauthorized or fraudulent use of or access to the order-entry,
servicing or administration system(s);
4.9 Broker-Dealer's duties with respect to Agency, Producers and
licensed assistant's securities activities, include, but are not
limited to: delivering to each person who submits an application a
current prospectus for the Product to be furnished by Company in
the form required by the applicable federal and state laws; review
all Product applications for accuracy and completeness, and
determining the suitability of the sale, which includes reasonable
efforts to obtain information concerning the applicant's financial
and tax status, investment objectives and any other information
used or considered reasonable in making a Product recommendation;
4.10 Authorized Selling Firm shall ensure that its Producers who market
and sell the Products are trained on (i) the product
specifications and features, and (ii) all Company Rules and
standards that RiverSource has established for and communicated to
Authorized Selling Firms and their Producers to use in meeting
their respective duties to ensure suitable sales of the Products
before they begin to solicit or sell Products. If Authorized
Selling Firm chooses not to use Company-provided materials in
training their Representatives on (i) and (ii) above, then
Authorized Selling Firm shall provide to RiverSource, for its
approval, documentation of its own form and content of training to
be used;
4.11 Authorized Selling Firm, through Producers, will solicit
applicants in accordance with suitability regulations and the
Company's underwriting standards, provided that nothing in this
Agreement shall be deemed to require Authorized Selling Firm to
solicit any particular customer's application for a Product;
4.12 Authorized Selling Firm is responsible for obtaining all
signatures required on each application and must deliver to
Company the application and all instruments necessary to establish
and issue a Contract under this Agreement;
4.13 Authorized Selling Firm will safeguard, maintain and account for
all policies, forms, manuals, equipment, supplies, advertising and
sales literature furnished to Authorized Selling Firm and
Producers by RiverSource, and will destroy or return the same to
RiverSource promptly upon request;
4.14 Authorized Selling Firm will keep identifiable and accurate
records and accounts of all business and transactions effected
pursuant to this Agreement. Upon reasonable notice and at
reasonable times, continuing during a period of one year following
the termination of this Agreement, Authorized Selling Firm will
permit RiverSource to visit, inspect, examine, audit and verify
its records pertaining to this Agreement;
4.15 No sales promotions, promotional materials, or any advertising
relating to Products or Company or Distributor ("Sales Material"),
or modification thereof, distributed to either customers or
Producers shall be used by Authorized Selling Firm or Producers
unless the specific item has been approved in writing by Company
or Distributor before use;
4.16 Authorized Selling Firm represents and warrants that all
directors, officers, employees and representatives of the
Authorized Selling Firm who are appointed pursuant to this
Agreement as Producers for Company or who have access to funds of
Company, including but not limited to funds submitted with
applications for Products or funds being returned to owners, are
and shall be covered by a blanket fidelity bond, including
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coverage for larceny and embezzlement, issued by a reputable
bonding company acceptable to Company. Broker-Dealer shall
maintain the bond at its expense;
4.17 Authorized Selling Firm shall have no authority with respect to
RiverSource, nor shall it represent itself as having such
authority, other than as is specifically set forth in this
Agreement;
4.18 Authorized Selling Firm shall return promptly to Company all
receipts for delivered Contracts, all undelivered Contracts and
all receipts for cancellations, in accordance with Company Rules.
Authorized Selling Firm will ensure prompt delivery of Contracts
to Contract owners by Authorized Selling Firm or their Producers
within 5 business days of receipt of the Contract by the
Authorized Selling Firm or their Producers. Authorized Selling
Firm agrees to indemnify and hold harmless Company for any loss
incurred by Company that results from failure to deliver Contracts
to Contract owners within such 5 business day period. This section
will not apply if Company transmits the Contract directly to the
Contract owner.
4.19 If Authorized Selling Firm establishes an individual retirement
plan through which Products may be offered, then Section 4.19
applies to such transactions in addition to all other terms and
conditions under this Agreement.
4.19.1 Authorized Selling Firm represents and warrants to
RiverSource that:
(a) An affiliate of Authorized Selling Firm qualifies
under the IRS Regulations 1.408-2 as Custodian for
the individual retirement account ("Custodial
IRAs"), and will administer the Custodial IRAs in
accordance with the requirements of the Internal
Revenue Code of 1986, as amended (the "Code") and
the rules, regulations and rulings adopted in
accordance with the Code;
(b) The Custodial IRA qualifies as an individual
retirement account under the Code;
(c) It will not submit an application to Company for
the purchase of a Product, on behalf of any
Custodial IRA customer, until Authorized Selling
Firm has received from the customer the completed
documents necessary to establish the Custodial IRA
account; and
(d) Authorized Selling Firm or an affiliate will
properly respond to any order, levy, summons or
subpoena relating to a Custodial IRA issued in
connection with a judicial or administrative
proceeding, investigation or inquiry.
4.19.2 RiverSource is not responsible for monitoring Custodial
IRAs with regard to compliance with the Code or other
rules and regulations promulgated under the Code or
applicable state law, including, but not limited to,
those related to over-contributions, eligibility, income
restrictions, timeliness of contribution, distributions
upon death, state tax law reporting or any other matters
related to the status of any Custodial IRA (as it relates
to IRAs specifically or any ownership or beneficiary
rights in general). RiverSource is not responsible for
Authorized Selling Firm's compliance with Authorized
Selling Firm's procedures with respect to the
administration of any Custodial IRA.
4.19.3 Authorized Selling Firm or an affiliate will provide such
returns or filings and render such statements and reports
as are required for federal regulatory and tax purposes.
4.19.4 The annual IRA custodial fee (if applicable) will be
charged by Authorized Selling Firm and not by Company.
4.19.5 Agency must make the following, or substantively similar,
disclosure in connection with the sale of individual
retirement annuity products into any Custodial IRA:
"Your individual retirement annuity ("Annuity IRA") has a
tax-deferred feature under the Internal Revenue Code, as
does your Custodial IRA. As a result, when you transfer
your annuity IRA to the Custodial IRA, your annuity will
not provide any necessary or additional tax deferral.
However, your Annuity IRA has features other than tax
deferral that may help you reach your retirement
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goals. Fees charged by the Insurance Company (if any)
will still apply as outlined in the annuity prospectus
and contract."
4.19.6 Authorized Selling Firm will provide RiverSource with the
name of its Custodian at RiverSource's request. So that
RiverSource has an opportunity to conduct due diligence,
any change in custodian or trustee does not take effect
unless approved in writing by RiverSource.
5. COMPANY AND DISTRIBUTOR REPRESENTATIONS AND RESPONSIBILITIES.
5.1 REPRESENTATIONS AND WARRANTIES:
5.1.1. Company represents and warrants that (a) it is duly
incorporated in the State of Minnesota and licensed in
all states in the Territory; (b) all Products, and all
sales material provided by Company or Distributor have
been filed and approved as required by state insurance
departments, and (c) these materials comply with all
applicable laws and regulations and rules of the NASD;
5.1.2. Distributor represents and warrants that it is duly
registered as a broker-dealer with the SEC, the NASD, all
fifty states and the District of Columbia, and is
qualified to do business in all states in which Company
is licensed and qualified to do business;
5.1.3. Distributor and Company represent and warrant that
Company, as issuer and on behalf of the underlying
investment account(s), has registered the underlying
investment account(s) of the Products with the SEC as a
security under the Securities Act of 1933 ("1933 Act")
and as a unit investment trust under the Investment
Company Act of 1940;
5.1.4. Company represents and warrants that the prospectuses and
registration statements relating to the Products do not
contain any untrue statements of material fact or any
omission to state a material fact, the omission of which
makes any statement contained in the prospectuses and
registration statements misleading;
5.1.5. Company represents and warrants that its sales material
complies with applicable law, and Company agrees to
indemnify the Authorized Selling Firm for any loss or
judgment as a result of any of Company's untrue
statements of material fact or any omission to state a
material fact, the omission of which makes any statement
contained in the Sales Material misleading.
5.2 Company shall send out all Contracts directly to Authorized
Selling Firm or their Producers unless Authorized Selling Firm
requests in writing that Company send out the Contract directly to
the Contract owner.
5.3 Upon Company's acceptance of any payment for a Product, Company
will deliver to each Contract owner a statement confirming the
transaction in accordance with Rule 10b-10 under the 1934 Act.
5.4 Company shall provide administrative, accounting and other
services to Contract owners as necessary and appropriate, in the
same manner as such services are provided to Company's other
Contract owners.
5.5 Notwithstanding any other provisions of this Agreement or any
other agreement between Company and/or Distributor and Agency
and/or Broker-Dealer, Company reserves the unconditional right
without prior notice to modify any of the Products in any respect
whatsoever, and to suspend the sale of any Products in whole or in
part at any time. Company may in its sole discretion refuse to
accept any application for a Contract or any purchase payment or
additional purchase payment for a Contract.
5.6 Company will comply with all federal and state laws and
regulations applicable to the Products and their distribution
under this Agreement.
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6. COMPENSATION. Company shall pay to Authorized Selling Firm compensation
in the form of commissions on premiums collected, gross dealer
concession, or other appropriate methods pursuant to this Agreement in
accordance with the rates and limitations as agreed to by the parties.
Such amounts shall constitute payment in full to the Broker Dealer or
Agency, as applicable, for all sales under this Agreement by the
Authorized Selling Firm and its Producers. Company shall pay
compensation to Authorized Selling Firm on a monthly basis within thirty
(30) days following the end of the month based on sales activity
occurring in the previous month including reversals for refunds or other
necessary adjustments.
6.1 Except as otherwise provided in this Agreement, or subsequently
agreed to in writing by RiverSource, Authorized Selling Firm will
be responsible for all costs and expenses of any kind and nature
incurred by Authorized Selling Firm in the performance of its
duties under this Agreement. The foregoing notwithstanding, it is
understood there is a separate agreement between the parties
pursuant to which the Company shall reimburse the Authorized
Selling Firm for its share of expenses in connection with the
establishment of sales offices, staffing of such offices, training
of Producers, and other related costs.
6.2 In the event of termination of this Agreement for one or more of
the reasons specified below in Section 9.1, Termination for Cause,
no further compensation shall thereafter be payable.
6.3 Upon termination of this Agreement, Company's obligation to pay
compensation to Broker-Dealer or to Agency as applicable will
immediately cease except that:
6.3.1. Company will pay compensation, as the same becomes due
and payable, upon Products for which the application has
been taken and the required premium has been collected
(or has become irrevocably collectable from a third
party) as of the date of termination, and for which the
Company subsequently issues a policy.
6.3.2. Company will charge back against compensation due in the
event of surrenders of Products sold prior to the
termination of this Agreement by Authorized Selling Firm
or Producers. Company will invoice Agency unless Company
and Agency agree upon another method of payment of such
amounts.
6.4 Authorized Selling Firm shall pay cash or non-cash compensation
for Product sales: (i) only to any person or entity that is
appropriately licensed and appointed to sell Products; (ii) which
are accepted by Company; and (iii) if such payment is in
accordance with applicable laws, regulations, NASD or other
self-regulatory organization rules and Company Rules.
6.5 If requested by Authorized Selling Firm, Company will advance
compensation monthly based on premium expected to be deposited
with Company to effect an IRC Section 1035 exchange of one
investment product for another product sold under this Agreement.
In the event that the expected premium does not reach Company
within 90 days of the date of the Product application, the entire
compensation for the transaction will be charged back during the
next normal compensation cycle.
6.6 The parties hereto agree that Company may act as paying agent for
the Authorized Selling Firm for purposes of paying compensation to
Producers (herein "Paying Agent Services"). In that event,
Authorized Selling Firm authorizes Company, on behalf of the
Broker-Dealer and Agency, to pay all compensation due to Producers
in respect of the sales of Contracts by Producers.
6.6.1. In connection with Paying Agent Services, Company shall
have no discretion as to either the timing or the amount
of such payments to any Producer and all such payments
shall be made in accordance with the Authorized Selling
Firm's compensation schedule which shall be provided to
the Company from time to time while this Agreement
remains in effect. Company will make all such payments
from its centralized payroll system. Company will
withhold all federal, state and local income and related
employment taxes in respect of such payments, and shall
timely report and deposit all such amounts with the
appropriate revenue authorities.
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6.6.2. Company's books and records will reflect all transactions
performed on behalf of Authorized Selling Firm.
Authorized Selling Firm will retain overall
responsibility for the records kept for it by Company
hereunder, exactly as if Authorized Selling Firm rather
than Company performed the Paying Agent Services. Company
acknowledges that it holds all books and records with
respect to the Paying Agent Services on behalf of and as
agent for Authorized Selling Firm whose property they are
and shall remain and Company acknowledges that it will
provide access to Authorized Selling Firm upon Authorized
Selling Firm's reasonable request.
6.6.3. In connection with the Paying Agent Services, each party
agrees to cooperate with the other party and all
appropriate government authorities (including without
limitation the SEC, the NASD and state insurance
regulators) and will permit each other and such
authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby.
Each party agrees to permit the other party or the
appropriate governmental authority to make copies of
portions of its books and records that relate to the
party's performance of its duties under this Agreement
and which are the subject matter of the investigation or
inquiry.
6.6.4. The Authorized Selling Firm agrees to reimburse Company
at cost for Paying Agent Services provided by Company
pursuant to this Agreement. The charge to the Authorized
Selling Firm for such services shall include all direct
and indirectly allocable expenses. The methods for
allocating expenses to the Authorized Selling Firm shall
be in accordance with the requirements of the Minnesota
insurance holding company system laws. Such methods shall
be modified and adjusted by mutual agreement where
necessary or appropriate to reflect fairly and equitably
the actual incidence of expense incurred by the Company
on behalf of the Authorized Selling Firm. The method of
allocating costs hereunder and the payment thereof shall
be determined in the following manner:
(a) The cost of services performed by the Company that
are identifiable as expenses incurred directly and
exclusively for the benefit of the Authorized
Selling Firm shall be charged to the Authorized
Selling Firm.
(b) The cost of services performed by the Company that
are not identifiable as expenses incurred directly
and exclusively for the benefit of the Authorized
Selling Firm shall be allocated and charged to the
Authorized Selling Firm in conformity with
customary insurance accounting practices.
(c) At the request of the Authorized Selling Firm, and
at Company's expense, the Company shall produce
records and provide access to enable the
Authorized Selling Firm to verify that such cost
allocations are performed in accordance with the
practices referenced above.
(d) For services rendered under this Agreement,
payment shall be made by the Authorized Selling
Firm to the Company on a monthly basis within
thirty (30) days of invoice or other notice. The
parties agree that during the course of any given
month the Authorized Selling Firm may make
reasonable estimated payments for part or all of
the monthly cost in which case such payment shall
be offset against the actual amount otherwise due
at the end of the month under this Agreement. The
parties also agree that, at the option of the
Authorized Selling Firm, the Authorized Selling
Firm may reimburse the Company based upon the
Company's good faith estimate of the monthly costs
for some or all of the services provided
hereunder, in which case there shall be a final
adjustment made within thirty (30) days after
completion of the Company's cost analysis
performed at least annually.
For purposes of allocating costs under this Agreement,
the Authorized Selling Firm and Company shall rely on
their internal accounting and allocation system then in
effect, that system currently being the Management
Accounting and Reporting System ("MARS"), which utilizes
a product factor methodology for certain services and
rate-volume formulas for other services, in order to
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ensure fair and reasonable allocations of income and
expenses among affiliated entities. Allocation of costs
in connection with Paying Agent Services shall be
accounted for by Authorized Selling Firm in accordance
with applicable requirements of the Securities and
Exchange Commission and by the NASD including guidance
provided in Notice To Members 03-63
6.6.5. It is understood that these Paying Agent Services may be
terminated at any time upon mutual consent of the parties
without otherwise affecting the terms of this Agreement.
7. INDEMNIFICATION.
7.1 INDEMNIFICATION OF COMPANY AND DISTRIBUTOR. Authorized Selling
Firm shall indemnify, defend and hold harmless Company and
Distributor and any of their respective officers, directors and
employees, from and against any and all losses, claims, damages,
liabilities, actions, costs or expenses to which Company or
Distributor, or any of their respective officers, directors and
employees, may become subject insofar as such losses, claims,
damages, liabilities, actions, costs or expenses arise out of or
are based upon: the acts or omissions of Authorized Selling Firm
or any of its employees, agents, Producers or licensed assistants
while acting on behalf of Authorized Selling Firm or RiverSource
in connection with this Agreement; any breach of any covenant or
agreement made by Authorized Selling Firm under this Agreement or
any illegal action; the acts or omissions of the clearing broker
or any employee or agent of clearing broker while performing the
activities covered by this Agreement. The indemnity obligation of
this paragraph will extend to any regulatory penalties incurred by
Company or Distributor as a result of said activities.
This indemnification obligation shall not apply to the extent that
such alleged act or omission is attributable to Company or
Distributor either because (1) Company or Distributor directed the
act or omission, or (2) the act or omission by Authorized Selling
Firm or any of its employees, agents, Producers or licensed
assistants was the result of their compliance with the Company
Rules.
7.2 INDEMNIFICATION OF AGENCY AND BROKER-DEALER. Company or
Distributor, as the case may be, shall indemnify, defend and hold
harmless Authorized Selling Firm, and any of its officers,
directors and employees, from and against any and all losses,
claims, damages, liabilities, actions, costs or expenses to which
Authorized Selling Firm, or any of its officers, directors and
employees, may become subject insofar as such losses, claims,
damages, liabilities, actions, costs or expenses arise out of or
are based upon: the acts or omissions of Company or Distributor,
respectively, or any employee or agent of Company or Distributor
(excluding Authorized Selling Firm, Producers or licensed
assistants) while acting on behalf of RiverSource in connection
with this Agreement; any breach of any covenant or agreement made
by Company or Distributor, respectively, under this Agreement; or
the inaccuracy or breach of any representation or warranty made by
Company or Distributor, respectively, under this Agreement.
7.3 LIMITATION OF LIABILITY. Each party agrees that, as between the
parties, in no event will any party to this Agreement be
responsible to any other party for any incidental, indirect,
consequential, special, punitive, or exemplary damages of any kind
arising from this Agreement, including without limitation, lost
revenues, loss of profits or loss of business. This limitation
does not apply to third party claims for damages that are covered
by the indemnification obligation under this Section 7.
8. ARBITRATION. The parties agree to attempt to settle any
misunderstandings or disputes arising out of this Agreement through
consultation and negotiation in good faith and a spirit of mutual
cooperation. However, if those attempts fail, the parties agree that any
misunderstandings or disputes arising from this Agreement will be
decided by arbitration administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules and
Title 9 of the U.S. Code. Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The
number of arbitrators will be three (unless the parties to the dispute
agree on a single arbitrator), one of whom will be appointed by
RiverSource or an affiliate other than Authorized Selling Firm, one of
whom will be appointed by Authorized Selling Firm, and the third of whom
will be selected by mutual agreement, if possible, within 30 days of the
selection of the second arbitrator and thereafter by the administering
authority.
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9. TERMINATION.
9.1 TERMINATION FOR CAUSE. At any time during the Term of this
Agreement, RiverSource or Authorized Selling Firm may terminate
this Agreement immediately for material breach of this Agreement
upon written notice of such termination to the other party. Such
written notice shall state the cause with specificity.
9.2 TERMINATION WITHOUT CAUSE. RiverSource or Authorized Selling Firm
may terminate this Agreement without cause upon 30 days prior
written notice to the other parties.
10. CONFIDENTIALITY. Each party agrees that, during the term of this
Agreement and at all times thereafter, it will not disclose to any
unaffiliated person, firm, corporation or other entity any contract
owner information, or any of the other parties' trade secrets or
confidential information, including, without limitation, the terms of
this Agreement; non-public program materials; member or customer lists;
and proprietary information, unless the party is required to do so to
execute its responsibilities under this Agreement and in all cases each
party will undertake the necessary safeguards to protect the other
party's confidential information.
11. ASSIGNMENT. The parties to this Agreement may not assign this Agreement
without the written approval of the other parties.
12. AMENDMENT OF AGREEMENT. RiverSource reserves the right to amend this
Agreement at any time, but no amendment shall be effective until
approved in writing by Authorized Selling Firm.
13. SETOFFS AND CHARGEBACKS. Authorized Selling Firm authorizes RiverSource
to set off from all amounts otherwise payable to Authorized Selling Firm
all liabilities of Broker-Dealer, Agency or Producers. Authorized
Selling Firm is liable for the payment of all moneys due to RiverSource
that may arise out of this Agreement or any other agreement between
Broker-Dealer, Agency, Distributor, and Company including, but not
limited to, any liability for any chargebacks or for any amounts
advanced by or otherwise due Company.
14. MISCELLANEOUS.
14.1 APPLICABLE LAW. This Agreement shall be governed by and
interpreted under the laws of the State of Minnesota.
14.2 SEVERABILITY. Should any part of this Agreement be declared
invalid, the remainder of this Agreement shall remain in full
force and effect, as if the Agreement had originally been executed
without the invalid provisions.
14.3 NOTICE. Any notice must be in writing and will be deemed to have
been duly given if sent by U.S. mail, postage prepaid, or via a
national courier service with the capacity to track its shipments,
to the following addresses:
IF TO COMPANY: IF TO DISTRIBUTOR:
RiverSource Life Insurance Company RiverSource Distributors, Inc.
227 Ameriprise Financial Center 52 Ameriprise Financial Center
Minneapolis, MN 55474 Minneapolis, MN 55474
IF TO AGENCY: IF TO BROKER-DEALER:
Ameriprise Financial Services, Inc. Ameriprise Financial Services, Inc.
55 Ameriprise Financial Center 55 Ameriprise Financial Center
Minneapolis, MN 55474 Minneapolis, MN 55474
Exhibit A modifications are duly given when sent by electronic
mail or U.S. mail to the current or last known primary contact
person at Authorized Selling Firm.
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14.4 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns, subject to the provisions of this Agreement limiting
assignment.
14.5 HEADINGS. The headings in this Agreement are for convenience only
and are not intended to have any legal effect.
14.6 DEFINED TERMS. The terms defined in this Agreement are to be
interpreted in accordance with this Agreement. Such defined terms
are not intended to conform to specific statutory definitions of
any state.
14.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties pertaining to the subject matter of this Agreement.
It supersedes all prior communications, representations,
understandings and agreements of the parties, whether oral or
written, pertaining to the subject matter of this Agreement.
14.8 SURVIVAL. All terms and conditions that of their nature are
intended by the parties to survive this Agreement shall.
14.9 NO WAIVER. No failure to enforce, nor any breach of any term or
condition of this Agreement, shall operate as a waiver of such
term or condition, or of any other term or condition, nor
constitute nor be deemed a waiver or release of any other rights
at law or in equity, or of claims which any party may have against
any other party, for anything arising out of, connected with, or
based upon this Agreement. Any waiver, including a waiver of this
Section, must be in writing and signed by the parties to this
Agreement.
14.10 RIGHTS AND REMEDIES ARE CUMULATIVE. The rights, remedies and
obligations contained in this Agreement are cumulative and are in
addition to any and all rights, remedies and obligations, at law
or in equity, which the parties to this Agreement are entitled to
under state and federal laws.
14.11 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which is an original and all of which together constitute one
and the same instrument.
RIVERSOURCE LIFE INSURANCE COMPANY AMERIPRISE FINANCIAL SERVICES, INC.
By: /s/ Timothy V. Bechtold By: /s/ Brian M. Heath
------------------------- ---------------------------------
Print Name: Timothy V. Bechtold Print Name: Brian M. Heath
---------------------- ------------------------------
Title: President Title: President - U S Advisor Group
---------------------- ------------------------------
Date: 12/21/2006 Date: 12/27/2006
---------------------- ------------------------------
RIVERSOURCE DISTRIBUTORS, INC.
By: /s/ Mark Schwarzmann
-------------------------
Print Name: Mark Schwarzmann
----------------------
Title: CEO
----------------------
Date: 12/21/2006
----------------------
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