AMENDED AND RESTATED TECHNOLOGY SERVICES AGREEMENT
Exhibit 10.6
[*] designates portions of this document that have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
AMENDED AND RESTATED TECHNOLOGY SERVICES AGREEMENT
This Amended and Restated Technology Services Agreement (“Agreement”) dated this 8th day of October, 2007, between XXXXXXX XXXXXX TECHNOLOGY SERVICES LLC, a Delaware limited liability company (the “Company”) with its principal place of business at 000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, and HSBC TAXPAYER FINANCIAL SERVICES INC., a Delaware corporation, with offices located at 00 Xxxxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxx (“HSBC”).
Recitals
WHEREAS, Xxxxxxx Xxxxxx Inc. (“Xxxxxxx Xxxxxx”) is the franchisor of the Xxxxxxx Xxxxxx Tax Service® tax preparation system to independently owned and operated franchisees (“Franchisees”) ; and
WHEREAS, The Franchisees provide to customers computerized federal and state individual income tax return preparation with electronic filing and offer or facilitate related services; and
WHEREAS, HSBC administers and its affiliate offers certain financial products to customers of tax service companies; and
WHEREAS, the parties desire to amend and restate the Technology Services Agreement by and between the parties dated February 24, 2006; and
WHEREAS, simultaneous with the execution of this Agreement, HSBC and its affiliate Beneficial Franchise Company, Inc. are entering into an amended and restated agreement with Xxxxxxx Xxxxxx with respect to a program whereby HSBC shall administer and its affiliate shall offer financial products to certain customers of Xxxxxxx Xxxxxx Tax Service (the “Program”), upon the terms and conditions set forth therein (the “Amended and Restated Program Agreement”); and
WHEREAS, HSBC desires, and the Company agrees to provide, certain technology services, personnel and related support to HSBC and Franchisees in connection with the Program.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. In addition to the other definitions set forth in the Agreement, the following terms are defined as follows:
1.1 “AR” shall mean an assisted refund with check or direct deposit, or such other product or terminology used to describe the process by which the Originator receives the Customer’s refund from the taxing authority through a deposit account set up by the Originator before forwarding the net proceeds to the recipient.
1.2 “Applicant” shall mean an individual electing to apply for a Financial Product at the office location of an Operator in connection with the Program.
1.3 “Application” shall mean one or more HSBC Financial Product application forms to be used by an Applicant, including any supplemental application forms.
1.4 “Applicable Law” shall mean all applicable federal, state and local laws, rules and regulations.
1.5 “Business Day” shall mean any day that is not a Saturday, Sunday legal holiday or other day on which banks in the state of New York are required or permitted to be closed.
1.6 “Customer” shall mean a Xxxxxxx Xxxxxx Tax Service customer that is also a customer of Originator and such customer receives a RAL, a funded Federal AR, or a funded State AR from Originator in 2008. For purposes of this definition, joint borrowers, joint recipients, or an applicant and a joint filer of such a financial product shall constitute one “Customer” and a customer that receives a (i) RAL and a funded State AR, or (ii) funded Federal AR and funded State AR shall count as two “Customers”. A customer that receives a Money Now Loan and a RAL shall constitute one “Customer”.
1.7 “EFS Requirements” shall mean the technology requirements provided by HSBC with respect to the systems operating the Program.
1.8 “Financial Product” shall mean a RAL, Money Now Loan, and AR (Federal and State) offered pursuant to the terms of this Agreement. The term “Financial Product” does not include an Assisted Refund/Bank Loan (“AR/BL”) or similar product
1.9 “IRS” shall mean the Internal Revenue Service.
1.10 “Marks” shall mean the names, trademarks, service marks, trade names, service names, and logos of a party that are designated by such party for use by the other, as the same may be amended from time to time.
1.11 “Money Now Loan” shall mean a loan by the Originator to an Applicant based on, among other things, the Applicant’s anticipated Federal income tax refund, with proceeds of such loan available on the same day the loan is approved by the Originator, with a final tax return being prepared and filed with the IRS, based on the Applicant’s W2, in the same office visit as the Applicant applies for such a loan.
1.12 “Originator” shall mean the state or nationally chartered banking institution designated to offer Financial Products under the Program.
1.13 “Program Protocols” shall mean those processes and procedures developed by HSBC for offering Financial Products pursuant to the Program, including, but not limited to, EFS Requirements, Quick Reference Guide, HSBC Bank Book materials, and the HSBC Bank Product Compliance Training materials.
1.14 “Qualifying Procedures” shall mean procedures developed from time to time by HSBC relating to an Applicant qualifying to apply for Financial Products and the Application process pursuant to the Program.
1.15 “RAL” shall mean a refund anticipation loan based upon, among other things, and secured by, an Applicant’s anticipated Federal income tax refund.
1.16 “Tax Season” shall mean, with respect to 2008, the period beginning on January 11, 2008, and ending on the last day an individual is permitted to file a federal income tax return with the IRS without extension, typically April 15, 2008, and with respect to 2007, the period beginning on the first day a RAL or Money Now Loan was made, and ending on the last day an individual was permitted to file a federal income tax return with the IRS without extension, typically April 15, 2007.
2. THE SERVICES.
2.1 The Services. The Company and HSBC shall provide similar technology services related to the Program as provided for the 2007 Tax Season, including systems and software incorporation and implementation of EFS Requirements in, and the coordination of systems between, Profiler®, the Xxxxxxx Xxxxxx Tax Service electronic filing software program and the related systems and servers (“Profiler”), and HSBC’s systems, adjusted for the change in Financial Products and the terms of the new Amended and Restated Program Agreement. Each party shall provide additional technology services upon the terms and conditions to be agreed in writing with HSBC. This Agreement applies to the services set forth herein to be performed in connection with the facilitation of Financial Products by Xxxxxxx Xxxxxx Tax Service locations during the Tax Season.
2.2 Deliverables. The Company and HSBC shall provide similar deliverables for the 2008 Tax Season as provided for the 2007 Tax Season and follow a similar timeline for deliverables as followed for the 2007 Tax Season. Notwithstanding the foregoing, the parties shall use their commercially reasonable best efforts to implement all deliverables that are required in order to comply with Applicable Law.
3. RIGHTS, DUTIES AND OBLIGATIONS OF THE COMPANY.
3.1 Personnel. The Company shall devote a reasonable number of employees to meet its obligations under this Agreement.
3.2 Training. The Company shall devote employees and resources as it deems necessary to provide training to Franchisees and corporate staff in connection with the operation of Profiler in connection with the Program.
3.3 Profiler Requirements. Subject to Article 2 above, Profiler shall provide for:
(a) the electronic transmission of Applications to HSBC or the Originator, including extracting all relevant Financial Product data from the IRS transmission file each time a Return for an Applicant is sent to the IRS in accordance with the Electronic Data Processing Guidelines provided by HSBC in advance of the 2008 Tax Season.
(b) the display of required interview questions with respect to Financial Products.
(c) the retention of an electronic copy of the forms of all Program documents for a period of five years from the date on such documents (after which time such documents may be deleted in accordance with applicable legal requirements).
(d) the printing of required documents including, the Application (other than paper Applications), IRS Form 8879 or similar form, and Loan Agreement and Disclosure Statement.
(e) the printing of HSBC disbursement checks at designated locations with the ability to affix a facsimile signature of the authorized signatory of the Originator.
3.4 System Errors. The Company shall consult with HSBC to develop a system for eliminating transmission errors, to the extent practicable.
3.5 Support. The Company shall operate a call center to support Franchisees in connection with the operation of Profiler as it relates to the facilitation of the Program.
3.6 Computer Network. The Company shall establish and maintain a technology and communication center, at a location designated by the Company, for use in electronically transmitting Returns, Applications and other related materials to HSBC.
3.7 Systems. The Company shall provide HSBC with all necessary information needed for HSBC or the Originator to coordinate systems and information.
3.8 Program Deliverables. The Company shall cooperate and consult with HSBC in accordance with Article 2 to agree on deliverables for the 2008 Tax Season and the related timeline.
3.9 System Changes. Unless required by law or otherwise agreed, the Company shall not alter its existing systems and software in such a manner that would result in the inability of the system to communicate with HSBC’s system in the general manner in which it communicated for the preceding Tax Season.
3.10 Availability. The Company shall be available during business hours and reasonably at all other times for consultation to HSBC to assist in timely completion of deliverables and continuation of operations during the term of this Agreement.
3.11 Forwarding Applications to HSBC. The Company shall incorporate or cause to be incorporated electronic filing software requirements provided by HSBC into its electronic filing software program relating to Applications. The Company shall extract all Money Now Loan and RAL data from its IRS transmission file each time a return for an Applicant is sent to the IRS in accordance with the Electronic Data Processing Guidelines provided by HSBC from time to time. The Company shall not forward an Application for a RAL or AR to HSBC without having electronically transmitted or caused to be transmitted the Applicant’s return to the IRS, and shall not forward an Application for a Money Now Loan without transmitting or causing to be transmitted the Applicants return to the IRS on the same day (and if it is done before the start of electronic filing, it must be done on the first day of electronic filing) and with respect to a RAL Application only, without having received acknowledgment of the return’s acceptance from the IRS for Electronic Filing, which acknowledgment shall also include, if available and currently provided, the reason the return was rejected, as described in Chapter 3 of the IRS e-file Handbook for Authorized IRS e-file Providers of Individual Income Tax Returns (Publication 1345, including Rev. Proc. 2000-31), as the same may be amended from time to time. Xxxxxxx Xxxxxx shall also forward customer’s electronically filed tax return information simultaneously with or promptly after the Application is transmitted to HSBC.
4. RIGHTS, DUTIES AND OBLIGATIONS OF HSBC.
4.1 Program Deliverables. HSBC shall cooperate and consult with the Company in accordance with Article 2 to agree on deliverables for the 2008 Tax Season and the related timeline.
4.2 Systems.
(a) System Changes. Unless required by law or otherwise agreed, HSBC shall not alter its existing systems and software in such a manner that would result in the inability of the system to communicate with the Company’s system in the general manner in which it communicated for the preceding Tax Season.
(b) HSBC shall provide the Company with all necessary information needed from HSBC or the Originator to create and populate required documents, including information related to the deposit account for Customers created for the respective Financial Product.
4.3 Availability. HSBC shall be available during business hours and reasonably at all other times for consultation to the Company to assist in timely completion of deliverables and continuation of operations during the Tax Season.
4.4 Reports. HSBC shall provide, in a timely fashion, such reports to Xxxxxxx Xxxxxx as HSBC provided during the 2007 Tax Season; provided that HSBC is not required to provide reports which contain information regarding other transmitters, non-Customers, proprietary risk model information, or information which may not be disclosed by applicable law. HSBC shall otherwise notify and discuss trend information related to the Program with Xxxxxxx Xxxxxx. HSBC covenants and agrees that all reports will be true, correct and complete in all material respects.
4.5 HSBC acknowledges and agrees (i) to keep all information with respect to Profiler and the modifications and developments hereunder confidential; and (ii) that the Company maintains sole and exclusive ownership rights in Profiler as modified, and further disclaims on behalf of itself and all other persons any ownership or purported ownership rights in the same.
4.6 Maintenance of Communication Lines. HSBC shall maintain communication lines for the Xxxxxxx Xxxxxx Tax Service e-file processing system to support the maximum daily Financial Product volume projected by the Company, as well as full Application follow-up information using such protocol and process as is mutually agreed upon by the Company and HSBC.
4.7 Maintenance of Communication Lines. HSBC shall maintain communication lines for the HSBC processing center to support the Program, using such protocol and process as is mutually agreed upon by HSBC and the Company. HSBC shall also maintain the ability to electronically communicate with HSBC’s affiliates for the purpose of fulfilling HSBC’s duties under the Program.
4.8 Management and Technical Support
(a) HSBC shall support the Program with non-exclusive staffing as it reasonably deems appropriate.
(b) HSBC shall maintain a “firewall” between personnel exclusively dedicated to other transmitters, tax preparers and software developers and confidential information regarding Xxxxxxx Xxxxxx and the Program.
5. LICENSE OF CERTAIN RIGHTS.
5.1 License of Trademarks. During the Term and subject to the terms and conditions of this Agreement, each of HSBC and the Company hereby grants to the other a non-exclusive, non-assignable and royalty-free right and license to use, reproduce and display its Marks and the Marks of their respective affiliates relating to the Program, solely in connection with the Program
and Profiler. Neither party shall at any time adopt or use, or seek to register, without the other party’s prior written consent, any variation of such other party’s Marks, or any xxxx similar thereto or likely to be confused therewith. Any and all goodwill arising from either party’s use of the other party’s Marks shall inure solely to the benefit of such other party, and neither during nor after the termination of this Agreement shall either party assert any claim to the other party’s Marks or goodwill. Neither party shall use the Marks of the other for any purpose except the purposes specifically set forth herein. All rights in and to the Marks of a party which are not specifically granted to the other herein shall remain with such party.
6. FEES PAID TO THE COMPANY.
6.1 Fees. In consideration of the performance of services hereunder, HSBC shall pay to the Company, fees as follows:
(a) HSBC shall pay to the Company for Tax Season 2008 [*].
(b) The above consideration shall be due and paid in three equal installments no later than the last Business Day of January, February, and March 2008.
(c) HSBC shall pay additional consideration to the Company for additional services performed and additional resources required to support expansion in the Program. [*]. The consideration due hereunder shall be paid on the last Business Days of February, March, and April, [*].
(d) All payments due from HSBC to the Company pursuant to this Article 6 shall be paid by wire transfer per written instructions signed by the Company’s Chief Financial Officer. HSBC shall make all payments as provided in such written instructions unless the Company provides HSBC revised payment instructions in an original written notice that is signed by any two (2) of the following officers of the Company: (i) Chief Financial Officer and Treasurer, (ii) General Counsel, (iii) Controller, and (iv) Vice President – Treasury & Investor Relations. Subject to the requirements set forth in the preceding sentence, the Company shall have the right to direct HSBC to make payments directly to other entities or third parties.
6.2 Financial Products. The parties agree that the Company shall have no right to any fees earned by HSBC in connection with its offering Financial Products.
7. TERM; TERMINATION.
7.1 Term of Agreement. This Agreement shall become effective on the date hereof and shall terminate and expire on October 31, 2008 (the “Term”), and shall not be extended.
7.2 Termination.
(a) Any party may terminate this Agreement (i) on the fifth (5th) day after receipt of written notice, or in the case of the period from January 1 to April 15, the tenth (10th) day after receipt of a written notice, by a party during the Tax Season, of its material breach of the performance of its obligations or duties hereunder (provided that the breaching party has failed to cure such breach within such five-day or ten-day, as the case may be, period); or (ii) immediately upon the effective date of termination of the Amended and Restated Program Agreement; provided however if it is ultimately determined that the Amended and Restated Program Agreement was wrongfully terminated, then such party shall be liable for wrongful termination under this Agreement.
(b) HSBC and Beneficial Franchise, on the one hand, or The Company, on the other, may terminate the Agreement, at any time, immediately upon notice to the other parties, (i) upon the filing by or against the other party of any petition in bankruptcy or for reorganization or debt consolidation under the federal bankruptcy laws or under comparable law; (ii) upon the other party’s making of an assignment of all or substantially all of its assets for the benefit of creditors; (iii) upon the application of the other party for the appointment of a receiver or trustee of its assets.
7.3 Return of Proprietary Information. Upon termination of this Agreement, the parties will return to any furnishing party all proprietary and confidential information received in connection with this Agreement and certify in writing to such furnishing party that such receiving party has not retained any copies of such proprietary or confidential information.
7.4 Survival. The provision of Articles 6 (to the extent the payment due date is prior to the effective date of termination), 7, 8, and 9 shall survive termination of this Agreement.
8. INDEMNIFICATION.
8.1 Indemnification by The Company. Except as otherwise limited by this Agreement, the Company shall indemnify, defend and hold harmless HSBC, its affiliates, parents, and subsidiaries, and their respective officers, directors, employees, agents, successors and permitted assigns, from and against any and all expenses and costs (including, without limitation, reasonable attorneys’ fees), judgments, penalties, liabilities (including amounts paid in settlement or other disposition) in connection with any third party claims, disputes, controversies or litigation arising out of, relating to or resulting from (i) any violation or alleged violation of Applicable Law by the Company in connection with this Agreement; (ii) any material breach by the Company of any representation, warranty, covenant or agreement hereunder or (iii) the negligence or willful misconduct of the Company in connection with the performance by it of its obligations under this Agreement.
8.2 Indemnification by HSBC. Except as otherwise limited by this Agreement, HSBC shall indemnify, defend, and hold harmless the Company, its affiliates, parents, and subsidiaries, and their respective officers, directors, employees, agents, successors and permitted assigns, from
and against any and all expenses and costs (including, without limitation, reasonable attorneys’ fees), judgments, penalties, liabilities (including amounts paid in settlement or other disposition) in connection with any third party claims, disputes, controversies, litigation or regulatory action arising out of, relating to or resulting (i) any violation or alleged violation of Applicable Law by HSBC in connection with this Agreement, (ii) any material breach by HSBC of any representation, warranty, covenant or agreement hereunder; or (iii) the negligence or willful misconduct of HSBC in connection with the performance by them of their respective obligations under this Agreement.
8.3 Indemnification Procedures. The indemnitee shall promptly notify the indemnitor in writing of any claim that may be the subject of indemnification under this Article 8; provided, however, that the failure of an indemnitee to so notify the indemnitor shall not relieve the indemnitor of its indemnification obligations hereunder to the extent that such failure does not actually prejudice the indemnitor with respect to such claim. The indemnitee shall have the right (but not the obligation) to defend such action or proceeding by retaining attorneys of its own selection to represent it at the indemnitor’s reasonable expense; provided that the indemnitor shall in all events have the right to participate in such defense. Indemnitee shall not compromise or settle any such claim or action without the prior approval of the indemnitor. Indemnitor shall have the right to sole and exclusive control of the matter upon written notice to the indemnitee that indemnitor shall take full responsibility for all costs, fees, obligations and damages associated with such claim. Indemnitor shall not compromise or settle any claim or action without the prior approval of the indemnitee and Indemnitor shall not be permitted to take actions that would materially adversely affect indemnitee. In the event of disagreement among the parties with respect to the settlement or handling of a third party matter, the parties agree to seek the immediate assistance of a mediator to assist the parties in resolving the matter taking into account the detrimental impact of the proposed action or inaction on the parties respective businesses
9. MISCELLANEOUS
9.1 Privacy. No party shall make any unauthorized disclosure of or use any personal information of individual consumers which it receives from the other party or on the other party’s behalf other than to carry out the purposes for which such information is received, and each party shall comply in all respects with all applicable requirements of Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and its implementing regulations and all other privacy regulations or requirements.
9.2 Information Security. Each party has developed, implemented, and will maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of confidential information provided to the other parties hereunder, (ii) protect against anticipated threats or hazards to the security or integrity of such confidential information, (iii) protect against unauthorized access or use of such confidential information, and (iv) ensure the proper disposal of confidential information. All personnel handling such confidential information have been appropriately trained in the implementation of that party’s information security policies and
procedures. Each party regularly audits and reviews its information security policies and procedures to ensure their continued effectiveness and determine whether adjustments are necessary in light of then-current circumstances including, without limitation, changes in technology, customer information systems or threats or hazards to confidential information. In the event of unauthorized access to confidential information or non-public personal information of individual consumers, each party shall cooperate with the other party, provide any notices and information regarding such unauthorized access to appropriate law enforcement agencies and government regulatory authorities, and affected customers which the other party in its sole discretion deems necessary.
9.3 Proprietary and Confidentiality Rights of The Parties. Each of the parties is informed and acknowledges that implementation and operation of the Program will involve the use of certain systems, computer programs, marketing, product development, risk management, and strategy data and/or other data, including business information or trade secrets (“Proprietary Information”) that are proprietary to the respective parties. Each party will retain in confidence all Proprietary Information received in connection with this Agreement and limit access to or disclosure of such Proprietary Information received in connection with this Agreement solely for the purpose of operation of the Program hereunder. To this end, the recipient will employ the same degree of care to avoid disclosure of such information that it employs with respect to its own information that it deems confidential. Such obligation of confidentiality shall not extend to any information which is shown to have been known by the receiving party prior to disclosure to it by the other party or parties hereto or generally known to others engaged in the same trade or business as the furnishing party, or that is or shall become part of public knowledge through no act or omission by the receiving party or its directors, officers, employees, professional advisors, or other representatives, or that shall have been lawfully received by the receiving party from a third party other than professional advisors and other representatives. Notwithstanding the foregoing, HSBC, upon obtaining appropriate consents from Applicants and the prior written consent of The Company, may share data obtained from such Applicant’s Returns and Applications with its affiliates for the purpose of offering financial products which are not offered by The Company and for the purpose of detecting or preventing fraud.
9.4 Audit and Report Rights.
(a) During the Term and for a period of one year thereafter, each party shall upon reasonable written request to the other party, provide access to books and records to the other party; (but not to any third parties without the consent of that party, which consent shall not be unreasonably withheld) and cooperate with, and provide to, the other party such assistance as it reasonably may require in connection with such party’s audit of the Program or matters in connection with the exercise of termination rights.
(b) HSBC shall provide Xxxxxxx Xxxxxx with reports as reasonably requested by Xxxxxxx Xxxxxx, the expense of which shall be paid by Xxxxxxx Xxxxxx, in order to permit Xxxxxxx Xxxxxx to perform an adequate assessment of internal control over financial reporting (which reports shall permit Xxxxxxx Hewitt’s auditors to audit Xxxxxxx Hewitt’s internal control over financial reporting and management’s assessment thereof). If Xxxxxxx Xxxxxx desires a SAS 70
report, HSBC shall engage its external auditors and shall provide a copy of such written report to Xxxxxxx Xxxxxx. The cost of providing the SAS 70 report by the external auditors shall be paid by Xxxxxxx Xxxxxx.
9.5 Representations. Each party represents and warrants to the others that (i) it is a corporation in good standing, (ii) its execution of this Agreement does not constitute a violation of any agreement or relationship to which it is a party, (iii) it has the right to enter into and perform its obligations hereunder and to grant the rights granted herein, and (iv) its Marks do not infringe upon the copyrights or trademarks of any third parties.
9.6 Agency; No Third Party Beneficiary.
(a) This Agreement does not establish or create a joint venture among the Company or HSBC (or its Originator) and the employees, agents or representatives of the respective parties and the Originator are not the partners, agents or representatives of each other. Except as otherwise provided in this Agreement, no party shall have, or hold itself out as having, any right, power or authority to act or create any obligation, express or implied, on behalf of the other.
(b) No Third Party Beneficiaries. Nothing in this Agreement is intended or shall be construed to give any person, other than the parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
9.7 Assignment. This Agreement may be assigned by HSBC without the consent of the Company; provided, however, that the effective date of such an assignment must either be (a) prior to October 31, 2007, but if such an assignment is prior to October 31, 2007, the assignee must have sufficient net worth to support the Program and be capable of performance and assumes the obligations of performance hereunder, or (b) after April 15, 2008. This Agreement may not be assigned by the Company without the prior written consent of HSBC, which consent shall not be unreasonably withheld.
9.8 Force Majeure. Either party shall be excused from performance hereunder for failure to perform any of the obligations if (i) such failure to perform occurs by reason of any of the following events (“Force Majeure Events”): act of God, fire, flood, storm, earthquake, tidal wave, communications failure, sabotage, war, military operation, terrorist attack, national emergency, mechanical or electrical breakdown, general failure of the postal or banking system, civil commotion, strikes, or the order, requisition, request or recommendation of any governmental agency or acting governmental authority, or either party’s compliance therewith or government proration, regulation, or priority, or any other similar cause beyond either party’s reasonable control and (ii) such Force Majeure Event is beyond such party’s reasonable control. The party excused from performance shall be excused from performance (i) only after notice from the party whose performance is impaired, (ii) only during the continuance of the Force Majeure Event and (iii) only for so long as such party continues to take reasonable steps to mitigate the effect of the Force Majeure Event and to substantially perform despite the occurrence of the Force Majeure Event. The party whose performance is not impaired may terminate this Agreement upon five (5) consecutive days’ notice during any tax season or upon twenty (20) consecutive days’ notice at any other time, effective immediately upon written notice to such party.
9.9 Public Announcements; Press Releases. The Company must obtain the approval of HSBC prior to the issuance or making of any press release or any other public announcement that relates to this Agreement or the parties’ business relationship, or that mentions HSBC’s or any of HSBC’s parents’, affiliates’ or subsidiaries’ names or tradenames. The Company must provide notice to HSBC and an opportunity to comment prior to the issuance or making of any press release or any other public announcement that relates to any Financial Product. HSBC must obtain the approval of the Company prior to the issuance or making of any press release or any other public announcement that mentions the Company’s or any of the Company’s parents’, affiliates’ or subsidiaries’ names or tradenames. The foregoing notice and approval procedures do not apply to filings or communications with the SEC or financial analysts and general oral responses to media inquiries, as long as such communications are not derogatory with respect to the other party or its parents, affiliates, or subsidiaries.
9.10 Confidential Nature of Agreement. The parties agree that the terms of this Agreement shall be kept confidential and may be released by a party to an unaffiliated third party only (i) if required by Applicable Law (including applicable laws of the securities and exchange commission and other regulatory bodies), or in connection with a merger, consolidation, sale of the stock or substantially all of the assets or other significant transaction of a party; provided that the party to whom this Agreement is disclosed is bound by confidentiality restrictions no less stringent than those set forth herein, or (ii) with the prior written consent of the other party hereto.
9.11 DISCLAIMERS. THE OBLIGATIONS OF THE COMPANY AND HSBC UNDER THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED. NONE OF THE COMPANY OR HSBC SHALL BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR INCOME, LOSS OF USE OR OTHER BENEFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED HEREUNDER.
9.12 Governing Law. Except to the extent governed by the United States Trademark Act of 0000 (Xxxxxx Xxx, 00 X.X.X. §§0000 et seq.), or other federal law, this Agreement and all claims arising from the relationship between the parties hereto shall be governed by, and interpreted in accordance with, the laws of the State of Delaware (without regard to its conflict of laws principles).
9.13 Notices. All notices and other communications under this Agreement shall be in writing and may be given by any of the following methods: (a) personal delivery against a signed receipt; (b) facsimile transmission (with confirmation of receipt as provided below); (c) registered or certified mail, postage prepaid, return receipt requested; or (d) overnight delivery service. Notices shall be sent to the appropriate party at its address or facsimile number given below (or as such other address or facsimile number for such party as shall be specified by notice given hereunder):
If to HSBC to:
HSBC TAXPAYER FINANCIAL SERVICES INC.
00 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Attention: Vice President - Sales
With a copy to: Office of the General Counsel
If to Xxxxxxx Xxxxxx Technology Services LLC:
c/o Jackson Xxxxxx Technology Services LLC.
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: Group Vice President – Financial Products
With a copy to: Office of the General Counsel
All such notices and communications shall be deemed delivered upon (a) actual receipt thereof by the addressee, (b) actual delivery thereof to the appropriate address, or (c) in the case of a facsimile transmission, upon transmission thereof by the sender and issuance by the transmitting machine of a confirmation slip confirming that the number of pages constituting the notice have been transmitted without error. In the case of notices sent by facsimile transmission, the sender shall contemporaneously dispatch a copy of the notice to the addressee at the address(es) indicated above by an overnight courier service. However, such mailing shall in no way alter the time at which the facsimile notice is deemed received.
9.14 Severability; Waiver. If any provision of this Agreement (other than a provision relating to fees) shall for any reason be held invalid, illegal or unenforceable, then the same shall not affect the validity of this Agreement or any other provision hereof, unless such a change has a material impact on any party, and this Agreement shall be interpreted and construed as if such provision to the extent invalid, had not been contained herein. The parties shall in good faith endeavor to redesign the Program or the terms hereof in a manner consistent with the intent and economic effect of this Agreement before terminating this Agreement pursuant to this Section. No waiver of any breach of this Agreement shall be effective unless made in writing and signed by an authorized representative of the waiving party. The waiver by any party of any breach hereof shall not operate or be interpreted as a waiver of any other or subsequent breach.
9.15 Commitment to Negotiation.
(a) Negotiation. Except with respect to a party’s wrongful use of the Marks of the other party for which the aggrieved party may seek injunctive or such other relief as such
aggrieved party may deem appropriate, or litigation brought against either party by third parties, no party hereto shall institute any proceeding in any court or administrative agency or any arbitration to resolve a dispute among the parties before that party has sought to resolve the dispute through direct negotiation with the other parties. If the dispute is not resolved within three weeks after a demand for direct negotiation, the parties shall then attempt to resolve the dispute through mediation.
(b) Consent to Jurisdiction. The parties agree that any other party may institute any action against it in any state or federal court of competent jurisdiction located in the City of New York, State of New York and irrevocably submits to the jurisdiction of such courts and waives any objection it may have to either the jurisdiction of or venue in such courts. This provision, however, shall not prevent a party from filing suit in any other court of competent jurisdiction if it chooses to do so.
9.16 WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH SUIT, ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
9.17 Entire Agreement. This Agreement, together with all Exhibits hereto, including any related agreements, and the Amended and Restated Program Agreement represents the entire agreement between the parties with respect to the subject matter set forth herein and each party represents and warrants to the other that there are no oral understandings between or among them or other written documents that differ from the terms and conditions of this Agreement. This Agreement may be modified only by a written agreement, signed by the party against whom enforcement is sought.
9.18 Headings; Construction. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
9.19 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of, which shall be taken together and deemed to be one instrument.
9.20 Further Assurance. From time to time after the execution of this Agreement, each party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
The parties have executed and delivered this Agreement as of the day and year first above written.
| WITNESS: | HSBC TAXPAYER FINANCIAL SERVICES INC. | |||||||
| /s/ Xxxxx Xxxxxx |
By: | /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
| WITNESS: | XXXXXXX XXXXXX TECHNOLOGY SERVICES LLC | |||||||
| /s/ Xxxx Xxxx |
By: | /s/ Xxxx San Xxxxxxx | ||||||
| Name: | Xxxx San Giacomo | |||||||
| Title: | Group Vice President – Financial Products | |||||||
ANNEX I
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