so in its marketing or sales capacity, including any communication regarding the terms and conditions of the engagement of the person providing the communication, and that the person is not intending to provide investment advice within the meaning of this subparagraph or to otherwise act as a fiduciary to the plan or under the obligations of a best interest recommendation. (ii) Certain counterparties or service providers The person providing the communication is a current or potential counterparty or service provider to the plan in connection with any transaction based on the communication, but only if— (I) the plan is represented, in connection with such transaction, by a plan fiduciary that is independent of the person providing the communication, and, except in the case of a swap (as defined in section 1a of the Commodity Exchange Act ( 7 U.S.C. 1a ) or security-based swap (as defined in section 3(a) of the Securities Exchange Act ( 15 U.S.C. 78c(a) ))), independent of the plan sponsor