Exhibit 10.15
HSBC DIGITAL SETTLEMENT PRODUCTS
DISTRIBUTION AGREEMENT
DATED AS OF SEPTEMBER 23, 2005
NOTE: CERTAIN MATERIAL HAS BEEN OMMITTED FROM THIS AGREEMENT PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2. THE LOCATIONS OF THESE
OMISSIONS ARE INDICATED THROUGHOUT THE AGREEMENT BY THE FOLLOWING MARKINGS:
[***].
Table of Contents
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ARTICLE I DEFINITIONS................................................. 1
Section 1.1. Definitions............................................ 1
Section 1.2. Rules of Construction.................................. 2
ARTICLE II IDENTITIES AND ROLES OF PARTIES; RESPONSIBILITIES OF
PARTIES..................................................... 2
Section 2.1. Identities and Roles of Parties........................ 2
Section 2.2. Responsibilities of the Parties........................ 2
Section 2.3. Digital Settlement Products Procedures................. 3
Section 2.4. Block Digital's Right Not To Offer Digital
Settlement Products.................................... 3
Section 2.5. Corporate Reorganizations.............................. 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE BLOCK COMPANIES....... 4
Section 3.1. Representations Incorporated by Reference.............. 4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE HSBC COMPANIES........ 5
Section 4.1. Representations Incorporated by Reference.............. 5
ARTICLE V COVENANTS OF BLOCK DIGITAL.................................. 5
Section 5.1. Digital Settlement Products Procedures................. 5
Section 5.2. Maintenance of the Block Digital Channel;
Filing of Returns...................................... 5
Section 5.3. Compliance with Laws................................... 5
Section 5.4. Other Duties........................................... 5
Section 5.5. Qualifying Procedure Compliance........................ 6
Section 5.6. Electronically Provide Application and
Disclosures to Settlement Products Clients............. 6
Section 5.7. Compliance with Originator Instructions................ 6
Section 5.8. Applicant Copies....................................... 6
Section 5.9. Rejected Returns....................................... 7
Section 5.10. Records Retention and Destruction...................... 7
Section 5.11. Representative Training................................ 7
Section 5.12. Block Digital's Supervision of
Representatives........................................ 7
Section 5.13. Compliance with Obligations of Article IX.............. 7
Section 5.14. Restriction on Offering Other Digital
Settlement Products.................................... 7
Section 5.15. Audit Rights........................................... 7
Section 5.16. Data Security and Recovery............................. 7
Section 5.17. Other Actions.......................................... 8
ARTICLE VI COVENANTS OF BLOCK SERVICES................................. 8
Section 6.1. Transmission of Returns to IRS......................... 8
Section 6.2. Transmission of Applicant Information File,
IRS Return Notification, Return and Debt
Indicator to HSBC TFS.................................. 8
Section 6.3. Rejected Returns....................................... 8
Section 6.4. Compliance with Laws................................... 8
ARTICLE VII COVENANTS OF HSBC BANK...................................... 9
Section 7.1. Form of Application.................................... 9
Section 7.2. Establishment of Client Deposit Accounts............... 9
Section 7.3. Payment of ERO Charges................................. 9
Section 7.4. Adverse Action Notices................................. 9
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Section 7.5. Supervision of Block Digital........................... 10
Section 7.6. Training Program....................................... 10
Section 7.7. Compliance Program..................................... 10
Section 7.8. RAC Fee................................................ 10
Section 7.9. Retail Settlement Products Procedures.................. 10
Section 7.10. Review of Applications................................. 10
Section 7.11. Delegation............................................. 10
ARTICLE VIII COVENANTS OF HSBC TFS....................................... 11
Section 8.1. Forward Applicant Information File with Debt
Indicator Information to HSBC Bank..................... 11
Section 8.2. Disbursements for Digital Settlement Products.......... 11
Section 8.3. Maintenance of Communication Lines..................... 11
Section 8.4. Records Retention and Destruction...................... 12
Section 8.5. Compliance with Laws................................... 12
ARTICLE IX AGENCY RELATIONSHIP......................................... 12
Section 9.1. Agency Relationship.................................... 12
Section 9.2. Supervision and Regulation............................. 12
Section 9.3. Audit Rights........................................... 13
Section 9.4. Training Program....................................... 13
Section 9.5. Clarification.......................................... 14
Section 9.6. Compliance Program..................................... 14
ARTICLE X TERM AND TERMINATION........................................ 16
Section 10.1. Term................................................... 16
Section 10.2. Termination............................................ 16
Section 10.3. Effect of Termination.................................. 16
ARTICLE XI DEFAULT OF HSBC COMPANIES AND REMEDIES OF BLOCK COMPANIES... 17
Section 11.1. HSBC Events of Default................................. 17
Section 11.2. Remedies............................................... 17
Section 11.3. Default Rate........................................... 17
Section 11.4. Waiver................................................. 17
ARTICLE XII DEFAULT OF BLOCK COMPANIES AND REMEDIES OF HSBC COMPANIES... 18
Section 12.1. Block Events of Default................................ 18
Section 12.2. Remedies............................................... 18
Section 12.3. Default Rate........................................... 19
Section 12.4. Waiver................................................. 19
ARTICLE XIII MISCELLANEOUS............................................... 19
Section 13.1. Survival............................................... 19
Section 13.2. No Waivers; Remedies Cumulative........................ 19
Section 13.3. Notices................................................ 19
Section 13.4. Severability........................................... 19
Section 13.5. Amendments and Waivers................................. 20
Section 13.6. Successors and Assigns................................. 20
Section 13.7. Headings............................................... 20
Section 13.8. Alternative Dispute Resolution......................... 20
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Section 13.9. Governing Law; Submission To Jurisdiction.............. 20
Section 13.10. Waiver of Jury Trial................................... 21
Section 13.11. Counterparts........................................... 21
Section 13.12. Entire Agreement....................................... 21
Section 13.13. Reinstatement.......................................... 21
Section 13.14. Advice of Counsel...................................... 21
Section 13.15. No Strict Construction................................. 21
Section 13.16. Conflict of Terms...................................... 22
Section 13.17. Further Execution...................................... 22
Section 13.18. Expenses............................................... 22
Section 13.19. No Implied Relationship; No Third Party Rights......... 22
Section 13.20. No Third Party Beneficiaries........................... 22
Section 13.21. Force Majeure.......................................... 22
Section 13.22. Limitation of Scope of Representations and
Warranties and Other Disclosures....................... 22
SCHEDULES
Schedule 2.3(a)(1) eRAC Product Procedures Schedule
Schedule 2.3(a)(2) Classic eRAL Product Procedures Schedule
Schedule 2.3(a)(3) Denied Classic eRAL Product Procedures Schedule
Schedule 5.1 Block Digital's Roles and Responsibilities
Schedule 7.8 RAC Fee for Block Digital Channel
Schedule 7.9 Roles and Responsibilities of HSBC Bank
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HSBC DIGITAL SETTLEMENT PRODUCTS
DISTRIBUTION AGREEMENT
This HSBC Digital Settlement Products Distribution Agreement (this "Digital
Distribution Agreement"), dated as of September 23, 2005, is made by and among
the following parties:
HSBC Bank USA, National Association, a national banking association ("HSBC
Bank");
HSBC Taxpayer Financial Services Inc., a Delaware corporation ("HSBC TFS");
H&R Block Digital Tax Solutions, LLC, a Delaware limited liability company
("Block Digital"); and
H&R Block Services, Inc., a Missouri corporation ("Block Services").
RECITALS
A. Block Digital provides income tax return preparation, electronic filing
and related services to Clients through its TaxCut software and its website.
B. HSBC Bank is engaged in the business of providing financial products and
services.
C. The parties hereto desire to enter into a mutually acceptable agreement
for HSBC Bank and HSBC TFS to provide Digital Settlement Products through the
Block Digital Channel.
D. HSBC Bank desires to engage HSBC TFS to act as the servicer of the
Digital Settlement Products.
E. The parties hereto desire to enter into this Digital Distribution
Agreement to set forth the terms and conditions for the distribution of Digital
Settlement Products to Clients of the Block Digital Channel.
F. Simultaneously with the execution of this Digital Distribution
Agreement, Block Services, Block Digital, HSBC Bank, HSBC TFS, and certain of
their Affiliates, are entering into the HSBC Retail Settlement Products
Distribution Agreement, dated as of the date hereof, as from time to time
amended, restated, supplemented or otherwise modified (the "Retail Distribution
Agreement"), and other agreements related thereto.
AGREEMENT
ACCORDINGLY, the parties to this Digital Distribution Agreement agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Digital Distribution
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the HSBC Appendix of Defined Terms and Rules of Construction
attached to the Retail Distribution Agreement as APPENDIX A, which is hereby
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein. In the event that any definition specified
in this Digital Distribution Agreement for any capitalized term is inconsistent
with the definition specified for such term in the Appendix of Defined Terms and
Rules of Construction attached to the Retail Distribution Agreement as APPENDIX
A, the definition in the Appendix of Defined Terms and Rules of Construction
attached to the Retail Distribution Agreement as APPENDIX A shall govern.
Section 1.2. Rules of Construction. For all purposes of this Digital
Distribution Agreement, unless the context otherwise requires, the rules of
construction set forth in the HSBC Appendix of Defined Terms and Rules of
Construction attached to the Retail Distribution Agreement as APPENDIX A shall
apply to this Digital Distribution Agreement.
ARTICLE II
IDENTITIES AND ROLES OF PARTIES; RESPONSIBILITIES OF PARTIES
Section 2.1. Identities and Roles of Parties. During the Term of this
Digital Distribution Agreement and the other Program Contracts, the parties
hereto will participate in and contribute to the Settlement Products Program as
follows (subject to the terms and conditions of this Digital Distribution
Agreement and the other Program Contracts):
(a) HSBC Bank shall be the Originator of the Digital Settlement
Products, and shall provide its Digital Settlement Products to Clients of the
Block Digital Channel.
(b) HSBC TFS shall be the servicer for the Settlement Products Program
and shall service the Digital Settlement Products originated by HSBC Bank.
(c) HSBC Bank hereby appoints Block Digital, and Block Digital hereby
accepts such appointment, effective July 1, 2006, to act as the agent of HSBC
Bank for purposes of offering and distributing Digital Settlement Products to
Clients of the Block Digital Channel during the Term of this Digital
Distribution Agreement. The term "Agent", as used in this Digital Distribution
Agreement, shall refer to Block Digital.
(d) Block Digital, individually and not in its capacity as agent,
shall be the ERO of Clients of the Block Digital Channel.
(e) Block Services shall support the Settlement Products Program
through the Block e-file Processing System.
Section 2.2. Responsibilities of the Parties.
(a) Each party to this Digital Distribution Agreement shall use
commercially reasonable efforts to cooperate with and assist the other parties
in the development and operation of the Settlement Products Program.
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(b) HSBC Bank shall be responsible for originating the Digital
Settlement Products.
(c) HSBC TFS shall be responsible for servicing the Digital Settlement
Products.
(d) Block Digital shall be responsible for offering and distributing
the Digital Settlement Products in accordance with the Instructions of HSBC Bank
and the terms and conditions of this Digital Distribution Agreement.
(e) Block Digital shall be responsible for maintaining the software
and Internet website necessary to electronically file Clients' Returns.
(f) Block Services shall be responsible for establishing and
maintaining the Block e-file Processing System to support the Settlement
Products Program as described in this Digital Distribution Agreement.
(g) Block Digital, individually and not in its capacity as agent,
shall be responsible for its Tax Preparation Related Activities.
Section 2.3. Digital Settlement Products Procedures.
(a) Except as otherwise provided in this Digital Distribution
Agreement, Block Digital shall offer the following Digital Settlement Products
through the Block Digital Channel and shall comply with the following policies
and procedures, as applicable, with respect to such products:
(1) eRACs, in accordance with the policies and procedures set
forth on the eRAC Product Procedures Schedule attached hereto as Schedule
2.3(a)(1);
(2) Classic eRALs, in accordance with the policies and procedures
set forth in the Classic eRAL Product Procedures Schedule attached hereto
as Schedule 2.3(a)(2); and
(3) with respect to an Application for a Classic eRAL that
becomes a Denied Classic eRAL, the parties will follow the policies and
procedures set forth on the Denied Classic eRAL Product Procedures Schedule
attached hereto as Schedule 2.3(a)(3).
(b) From time to time, the parties to this Digital Distribution
Agreement may amend or modify any or all of the Digital Settlement Products
Procedures Schedules. All such amendments or modifications shall be in writing
and shall specify the date on which the amended schedule becomes effective. Each
amended schedule shall be deemed to be a part of this Digital Distribution
Agreement and shall be deemed incorporated herein, but shall apply only
prospectively from the effective date thereof.
Section 2.4. Block Digital's Right Not To Offer Digital Settlement
Products. Notwithstanding any other provision of this Digital Distribution
Agreement or the other Program
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Contracts, Block Digital may, in its sole discretion at any time and from time
to time during the Term of this Digital Distribution Agreement, elect not to
offer one or more Digital Settlement Products in one or more states or through
one or more formats (e.g. TaxCut or online).
Section 2.5. Corporate Reorganizations.
(a) The Block Companies may assign their rights and obligations under
this Digital Distribution Agreement to one or more Subsidiaries of H&R Block
without the consent of the HSBC Companies if (i) such assignment is desirable in
connection with a reorganization of the business operations of H&R Block's
Subsidiaries, (ii) such contemplated assignment will not materially adversely
affect any right or obligation of any HSBC Company under this Digital
Distribution Agreement, and (iii) the contemplated assignee (A) is a wholly
owned (direct or indirect) Subsidiary of H&R Block and (B) has the operational
and financial capacity to meet all obligations of the assigning Block Company
under this Digital Distribution Agreement contemplated to be assigned to it (a
"Permitted Block Assignment"). The assigning Block Companies shall provide each
of the HSBC Companies at least sixty (60) days prior written notice of any
contemplated Permitted Block Assignment. The parties hereto agree to amend this
Digital Distribution Agreement to the extent necessary to reflect such Permitted
Block Assignment.
(b) The HSBC Companies may assign their rights and obligations under
this Digital Distribution Agreement to one or more Subsidiaries of HSBC North
American Holdings, Inc. without the consent of the Block Companies if (i) such
assignment is desirable in connection with a reorganization of the business
operations of HSBC North American Holdings, Inc.'s Subsidiaries, (ii) such
contemplated assignment will not materially adversely affect any right or
obligation of any Block Company under this Digital Distribution Agreement, and
(iii) the contemplated assignee (A) is a wholly owned (direct or indirect)
Subsidiary of HSBC North American Holdings, Inc., (B) only with respect to any
assignment by HSBC Bank under this Section 2.5(b), is a national bank or federal
savings association and (C) has the operational and financial capacity to meet
all obligations of the assigning HSBC Company under this Digital Distribution
Agreement contemplated to be assigned to it (a "Permitted HSBC Assignment"). The
assigning HSBC Companies shall provide each of the Block Companies at least
sixty (60) days prior written notice of any contemplated Permitted HSBC
Assignment. The parties hereto agree to amend this Digital Distribution
Agreement to the extent necessary to reflect such Permitted HSBC Assignment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BLOCK COMPANIES
Section 3.1. Representations Incorporated by Reference. Each Block Company
that is a party to this Digital Distribution Agreement represents and warrants
to each of the HSBC Companies that is a party to this Digital Distribution
Agreement, that each representation and warranty made by it in Article III of
the Retail Distribution Agreement is true and correct.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE HSBC COMPANIES
Section 4.1. Representations Incorporated by Reference. Each HSBC Company
that is a party to this Digital Distribution Agreement represents and warrants,
with respect to itself only, to each of the Block Companies that is a party to
this Digital Distribution Agreement, that each representation and warranty made
by it in Article IV of the Retail Distribution Agreement is true and correct.
ARTICLE V
COVENANTS OF BLOCK DIGITAL
Block Digital hereby covenants and agrees during the Term of this Digital
Distribution Agreement, as follows:
Section 5.1. Digital Settlement Products Procedures. Subject to the terms
of Article V, Block Digital shall perform, in a commercially reasonable manner,
all of the tasks and duties set forth in (a) the Digital Settlement Products
Procedures Schedules that are to be performed by it with respect to each Digital
Settlement Product, and (b) Block Digital's Roles and Responsibilities Schedule
attached hereto as Schedule 5.1.
Section 5.2. Maintenance of the Block Digital Channel; Filing of Returns.
Block Digital shall develop (if necessary) and maintain the Block Digital
Channel for use by Clients in the preparation and filing of Clients' Returns.
The Block Digital Channel shall have the capability of (a) electronically filing
Clients' Returns with the IRS, (b) making Digital Settlement Products available
to eligible Clients using the Block Digital Channel, (c) providing an electronic
Application to eligible Clients who have expressed an interest in applying for a
Digital Settlement Product using the Block Digital Channel, and (d) permitting
prospective Applicants to electronically complete an electronic Application. In
connection with each Return with respect to which the Applicant is applying for
a Digital Settlement Product, Block Digital shall insert in the applicable
location on such Return the account number of the Applicant's Deposit Account,
which account number shall consist of an eight digit prefix provided by HSBC
Bank to Block Digital, followed by the primary social security number of the
Applicant. Block Digital shall indicate on such Return that the Deposit Account
is a checking account.
Section 5.3. Compliance with Laws. Block Digital shall comply with all Laws
applicable to it in connection with its Tax Preparation Related Activities.
Section 5.4. Other Duties. Block Digital shall act as an agent of HSBC Bank
for the purpose of, among other things:
(a) providing electronic Applications to Clients through the Block
Digital Channel;
(b) providing Settlement Products Clients with the ability to print
electronic copies of their completed Applications and other disclosures, forms
and documents, as reasonably required by HSBC Bank and in the form provided by
HSBC Bank to Block Digital;
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(c) providing HSBC TFS, as servicer for the Originator, with
electronic copies of Applicant Information Files; and
(d) subject to applicable Law, providing HSBC Bank with such reports
as HSBC Bank may reasonably request with respect to Block Digital's performance
of its duties under this Digital Distribution Agreement; provided, however, that
during the period commencing on January 1 and ending on April 15 of each year of
the Term of this Digital Distribution Agreement, HSBC Bank shall use
commercially reasonable efforts to limit the exercise of such reporting
requirements so as not to disrupt the business operations of Block Digital
during its peak season.
Section 5.5. Qualifying Procedure Compliance. Block Digital shall follow
the Qualifying Procedures in connection with the Settlement Products Program.
Section 5.6. Electronically Provide Application and Disclosures to
Settlement Products Clients. Block Digital shall:
(a) provide access through the Block Digital Channel to an electronic
Application to each Client who has expressed an interest in obtaining a Digital
Settlement Product and who has satisfied the eligibility requirements set forth
in the Qualifying Procedures, which Application may be electronically completed
and executed by the Client through the Block Digital Channel;
(b) electronically provide and require each Settlement Products Client
of the Block Digital Channel to electronically complete and electronically sign
an authorization permitting Block Digital to use the Client's Return information
for the application process in accordance with Section 301.7216-3(b) of the
United States Treasury Department Regulations;
(c) electronically provide and require each Settlement Products Client
of a Block Digital Channel to electronically complete and electronically sign
IRS Form 8453;
(d) electronically sign each Form 8453 as ERO, if required by the IRS;
(e) electronically deliver to each Applicant any disclosures required
by applicable Law, or to satisfy HSBC Bank's reasonable safety and soundness
concerns, or as directed by HSBC Bank and in the form provided by HSBC Bank; and
(f) follow all Instructions prescribed by HSBC Bank with respect to
the preparation and processing of Applications consistent with this Digital
Distribution Agreement and in accordance with applicable Laws.
Section 5.7. Compliance with Originator Instructions. Block Digital shall
use commercially reasonable efforts to act in accordance with all Instructions
of HSBC Bank.
Section 5.8. Applicant Copies. Block Digital shall provide each of its
Applicants with the ability to print an electronic copy of such Applicant's
electronically completed and signed Application and IRS Form 8453, together with
any other commercially reasonable disclosures or documents required to be
provided to the Applicant by HSBC Bank.
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Section 5.9. Rejected Returns. Upon receipt of a negative IRS Return
Notification with respect to a Return for which the Client has submitted an
Application for a Digital Settlement Product, Block Digital shall notify the
Client of the need to resolve any problems with the Return.
Section 5.10. Records Retention and Destruction.
(a) In connection with the Settlement Products Program, Block Digital
shall maintain, in electronic form, a copy of the form of Application and other
Settlement Products Program documents electronically executed by the Applicant
and, a copy of the software, and a record of each Applicant's clicks. Upon
receipt of the reasonable written request of HSBC Bank or HSBC TFS, each Block
Agent shall exercise commercially reasonable efforts to make electronic forms of
such documents available to HSBC Bank or HSBC TFS, as applicable and at HSBC
Bank's expense.
(b) Block Digital may dispose of such documents following the
expiration of the longer of (i) forty-eight (48) months after the preparation or
receipt of same or (ii) such retention period as required by applicable Law or
regulatory or court order, provided that such disposition is in a manner
sufficient to protect Client privacy.
Section 5.11. Representative Training. Block Digital shall require any of
its Representatives who engage in Settlement Products Program activities and
have direct contact with Settlement Products Clients, if any, to participate in
the Settlement Products Training Program overseen by HSBC Bank as described in
Section 9.4.
Section 5.12. Block Digital's Supervision of Representatives. Block Digital
shall train, supervise, monitor and review the Settlement Products Program
activities performed by its Representatives to ensure that the activities of
such Persons comply with HSBC Bank's Instructions and the Laws applicable to the
Settlement Products Program.
Section 5.13. Compliance with Obligations of Article IX. Block Digital
shall comply with its obligations as agent of HSBC Bank, as set forth in Article
IX of this Digital Distribution Agreement.
Section 5.14. Restriction on Offering Other Digital Settlement Products.
Block Digital shall not offer any Digital Settlement Products to its Clients,
directly or indirectly, except in connection with the Settlement Products
Program offered by or through HSBC Bank; [***].
Section 5.15. Audit Rights. Block Digital shall grant to HSBC Bank and its
Applicable Federal Regulator access and audit rights as set forth in Section
9.3.
Section 5.16. Data Security and Recovery. Block Digital shall maintain the
security of its data and recovery of systems, applications and data related to
the Settlement Products Program in accordance with 16 C.F.R. Part 314 and OCC
regulations and policies relating to data security (to the extent required by
Law) and shall report any breaches in its data security to HSBC Bank within five
(5) Business Days of Block Digital's discovery of any such breach. Block Digital
has developed, implemented and will maintain effective information security
policies and procedures that include administrative, technical and physical
safeguards designed
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to (a) ensure the security and confidentiality of Confidential Information
provided to Block Digital hereunder, (b) protect against anticipated threats or
hazards to the security or integrity of such Confidential Information, (c)
protect against unauthorized access or use of such Confidential Information, and
(d) ensure the proper disposal of Confidential Information. All personnel of
Block Digital handling such Confidential Information have been appropriately
trained in the implementation of Block Digital's information security policies
and procedures. Block Digital shall regularly audit and review its information
security policies and procedures to ensure their continued effectiveness and to
determine whether adjustments are necessary in light of circumstances, including
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, Block
Digital shall promptly take appropriate action to prevent further unauthorized
access and shall take any other action required by Law.
Section 5.17. Other Actions. Block Digital shall take and cause the
Representatives to take, any such action, or refrain from taking any such
action, that HSBC Bank reasonably determines is necessary to comply with
applicable Law in connection with the activities of the Settlement Products
Program.
ARTICLE VI
COVENANTS OF BLOCK SERVICES
Section 6.1. Transmission of Returns to IRS. With respect to those Returns
for which a Client has submitted an Application, upon such Client's consent,
Block Services, individually and not in its capacity as agent, shall transmit
all Clients' federal Returns received from Block Digital to the IRS or, in the
case of state Returns, the appropriate state taxing authority, in accordance
with its normal operating procedures.
Section 6.2. Transmission of Applicant Information File, IRS Return
Notification, Return and Debt Indicator to HSBC TFS. Upon receipt of a positive
IRS Return Notification for those Returns for which a Client has submitted an
Application for a Digital Settlement Product, Block Services shall
electronically transmit to HSBC TFS (a) the Applicant Information File, (b) a
copy of the Applicant's IRS Return Notification, and (c) a copy of the
Applicant's Debt Indicator.
Section 6.3. Rejected Returns. Upon receipt of a negative IRS Return
Notification with respect to a Return for which a Client has submitted an
Application for a Digital Settlement Product, Block Services shall notify Block
Digital that such Return has been rejected.
Section 6.4. Compliance with Laws. Block Services shall comply with all
applicable Laws in connection with its Tax Preparation Related Activities.
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ARTICLE VII
COVENANTS OF HSBC BANK
HSBC Bank hereby covenants as follows:
Section 7.1. Form of Application. HSBC Bank shall prepare the electronic
form of Application to be used by Block Digital and shall supply such
Application to Block Digital no later than September 1 prior to each Tax Period.
The form of Application shall include:
(a) such consents to allow HSBC Bank to remit funds out of the Deposit
Account in the same order and for the same purposes as provided in Article III
of the Servicing Agreement; and
(b) such additional lawful consents, if any, to allow HSBC Bank, or
any of its Affiliates, to make collections on (i) any delinquent Digital
Settlement Products, (ii) any Delinquent ERO Charges, and (iii) other lenders'
products substantially similar to the Settlement Products, excluding any tax
preparation fees associated with such other lenders' products.
Section 7.2. Establishment of Client Deposit Accounts. Upon receipt of each
Application, HSBC Bank shall establish a Deposit Account in the name of the
Settlement Products Client listed on such Application. Upon receipt of the
Refund Paid for each Settlement Products Client, HSBC Bank shall credit the
amount of such Refund Paid to such Settlement Products Client's Deposit Account.
Immediately thereafter, HSBC Bank shall debit the Authorized Deductions from
each Deposit Account in the manner set forth in the Servicing Agreement.
Section 7.3. Payment of ERO Charges.
(a) For each eRAL disbursed via Electronic Disbursement for which HSBC
TFS has sent a 1 Record prior to 8:00 p.m. ET on a Business Day, HSBC Bank shall
pay to Block Digital, from the proceeds of such eRAL, the ERO Charges due from
the Client, if any, set forth in the Settlement Products Client's Applicant
Information File via ACH credit to the deposit account specified by Block
Digital no later than the next Business Day. All 1 Records that are sent and/or
processed after 8:00 p.m. ET on any given Business Day shall be deemed to have
been received and processed on the next Business Day.
(b) For each eRAL disbursed via check for which a notification is
received by HSBC TFS prior to 8:00 p.m. ET on a Business Day that a check was
printed, HSBC Bank shall pay to Block Digital, from the proceeds of such eRAL,
the ERO Charges due from the Client, if any, set forth in the Settlement
Products Client's Applicant Information File via ACH credit to the deposit
account specified by Block Digital no later than the next Business Day. All
notifications that are sent and/or processed after 8:00 p.m. ET on any given
Business Day shall be deemed to have been received and processed on the next
Business Day.
Section 7.4. Adverse Action Notices. HSBC Bank shall (a) transmit a notice
of adverse action to Applicants as required by Regulation B as promulgated by
the Board of Governors of the Federal Reserve System (12 C.F.R. Part 202), or
any successor regulation, or
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(b) direct Block Digital to transmit such notice, in the form provided by HSBC
Bank, to Settlement Products Clients.
Section 7.5. Supervision of Block Digital. HSBC Bank shall supervise,
monitor and review the Settlement Products Program activities that Block Digital
performs for HSBC Bank as described in Section 9.2.
Section 7.6. Training Program. HSBC Bank shall design, establish and
maintain the Settlement Products Program training program as set forth in
Section 9.4.
Section 7.7. Compliance Program. HSBC Bank will design, establish and
maintain the Settlement Products Program compliance program as set forth in
Section 9.6.
Section 7.8. RAC Fee. For each Client refund processed through the Refund
Anticipation Check Service pursuant to this Digital Distribution Agreement
during each Tax Period, except for those refunds processed for which a Savings
Vehicle Fee is paid by the Block Companies, HSBC Bank shall pay to Block Digital
a RAC Fee in the amount set forth on Schedule 7.8. The RAC Fee shall be paid via
ACH credit to an account designated in writing by Block Digital on the Business
Day following receipt of the deposit of any payment or collection in the Deposit
Account related to such refund processed if posted to the Client's account by
8:00 p.m. Eastern Time on the day of receipt. Any payments processed after 8:00
p.m. Eastern Time on any day shall be deemed to have been received and processed
on the next Business Day, for purposes of fee payment.
Section 7.9. Retail Settlement Products Procedures. HSBC Bank shall
perform, in a commercially reasonable manner, all of the tasks and duties set
forth on (i) the Digital Settlement Products Procedures Schedules that are to be
performed by HSBC Bank with respect to each Digital Settlement Product, and (ii)
Schedule 7.9.
Section 7.10. Review of Applications. HSBC Bank shall review and process
Applicant Information Files for Digital Settlement Products during each Tax
Period during the Term of this Digital Distribution Agreement according to the
Final Credit Criteria. Applicant Information Files for eRALs received by 2:00
p.m. Eastern Standard or Daylight Savings Time (as the case may be) shall be
reviewed and processed by the close of business on the Block Business Day of
HSBC TFS's receipt of such Applicant Information Files. HSBC TFS shall review
and process Applicant Information Files for eRALs received by HSBC TFS after
2:00 p.m. Eastern Standard or Daylight Savings Time (as the case may be), by
10:00 a.m. Eastern Standard or Daylight Savings Time (as the case may be) on the
Block Business Day following HSBC TFS's receipt of such Applicant Information
File.
Section 7.11. Delegation. Notwithstanding any other provision of this
Digital Distribution Agreement, HSBC Bank may delegate its duties and
obligations to HSBC TFS, provided HSBC Bank remains liable for the performance
of such duties and obligations.
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ARTICLE VIII
COVENANTS OF HSBC TFS
HSBC TFS, as servicer for the Originator, hereby covenants as follows:
Section 8.1. Forward Applicant Information File with Debt Indicator
Information to HSBC Bank. Upon receipt of a copy of an Applicant Information
File for an eRAL or eRAC, IRS Return Notification and Debt Indicator from Block
Services, HSBC TFS shall electronically transmit to HSBC Bank a copy of the
Applicant Information File and a copy of the Applicant's Debt Indicator, as
applicable.
Section 8.2. Disbursements for Digital Settlement Products.
(a) Upon approval of an Applicant to receive an eRAL, HSBC TFS shall
disburse to the Settlement Products Client the Principal Amount of such eRAL
less the RAL Fee, Refund Account Fee and any ERO Charges payable to Block
Digital in accordance with such Client's instructions, which disbursement may be
by Direct Deposit into the deposit account designated by the Settlement Products
Client. After receipt of such Applicant's Refund Paid, if any funds remain in
the Deposit Account after debiting all Authorized Deductions, HSBC TFS shall
disburse to the Settlement Products Client the amount remaining in the Deposit
Account in accordance with such Client's instructions, which disbursement may be
by Direct Deposit into the deposit account designated by the Settlement Products
Client.
(b) For each Applicant who has been approved to receive an eRAC, upon
HSBC TFS's crediting of the Refund Paid to such Applicant's Deposit Account and
after debiting all Authorized Deductions from such Deposit Account, if any funds
remain in the Deposit Account, HSBC TFS shall disburse to the Settlement
Products Client the amount remaining in the Deposit Account in accordance with
such Client's instructions, which disbursement may be by Direct Deposit into the
deposit account designated by the Settlement Products Client.
(c) If the Direct Deposit is returned because of incorrect account
information or any other reason and HSBC TFS is unable to obtain the correct
account information or otherwise resolve the problem, HSBC TFS shall mail such
Settlement Products Client a Disbursement Check. In lieu of a Direct Deposit to
the Settlement Products Client's personal financial institution, HSBC TFS may
transfer such distributable amount to the Settlement Products Client via some
other disbursement option that may be available from time to time as selected by
the Settlement Products Client.
Section 8.3. Maintenance of Communication Lines. HSBC TFS shall maintain
communication lines for the HSBC TFS processing center to support the Settlement
Products Program, using such protocol and process as is mutually agreed upon by
HSBC TFS and Block Services. HSBC TFS shall also maintain the ability to
electronically communicate with HSBC Bank for the purpose of fulfilling HSBC
TFS's duties under the Settlement Products Program.
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Section 8.4. Records Retention and Destruction.
(a) HSBC TFS shall maintain copies (either in paper format or
electronic format) of any disclosures or communications provided or sent to each
Applicant by HSBC TFS on behalf of HSBC Bank related to the Application.
(b) HSBC TFS may dispose of such documents following the expiration of
the longer of (i) forty-eight (48) months after the preparation or receipt of
same or (ii) such retention period as required by Law or regulatory or court
order, provided that such disposition is in a manner sufficient to protect
Client privacy.
Section 8.5. Compliance with Laws. In connection with fulfilling its duties
for the Settlement Products Program, HSBC TFS shall comply with all applicable
Laws.
ARTICLE IX
AGENCY RELATIONSHIP
Section 9.1. Agency Relationship.
(a) The parties hereto hereby acknowledge that HSBC Bank is
appointing, effective July 1, 2006, Block Digital as its agent with respect to
the Settlement Products Program. This Digital Distribution Agreement describes
and establishes the nature of the relationship that will exist as of July 1,
2006 between HSBC Bank and Block Digital, and sets forth the rights, duties and
obligations of HSBC Bank and Block Digital. Block Digital (or its assignees)
shall act as the agent of HSBC Bank with respect to the Settlement Products
Program and, except as otherwise provided herein, shall not offer Digital
Settlement Products from any other source.
(b) In performing its specified duties under Article V of this Digital
Distribution Agreement, Block Digital shall act as the agent of HSBC Bank for
the purposes of, among other things: (i) offering Digital Settlement Products to
Clients; (ii) providing electronic Applications to Clients; (iii) providing
Settlement Products Clients with the ability to print the electronically signed
Applications and other disclosures, forms and documents, as reasonably required
by HSBC Bank and in the form provided by HSBC TFS to Block Digital; and (iv)
providing HSBC TFS, as servicer for the Originator, with electronic copies of
Applicant Information Files.
Section 9.2. Supervision and Regulation.
(a) The parties hereto acknowledge that HSBC Bank, directly or through
the Servicer, has the right and the duty to supervise, monitor and review the
Settlement Products Program activities that Block Digital performs for HSBC
Bank. The parties acknowledge and agree that, directly or through the Servicer,
HSBC Bank shall have the right to review that portion of the TaxCut software and
that portion of the website pursuant to which Digital Settlement Products are
offered to ensure that such programs and software comply with HSBC Bank's
policies and procedures for the Settlement Products Program and the Laws
applicable to the Settlement Products Program, as provided in Section 9.3.
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(b) Block Digital acknowledges that the Applicable Federal Regulator
has authority to regulate and examine, and to take enforcement action against,
Block Digital with respect to the Settlement Products Program activities that
Block Digital performs for HSBC Bank, to the fullest extent provided by Law.
HSBC Bank and Block Digital each acknowledge that they are subject to the
control and supervision of the appropriate regional office and the Washington,
D.C. headquarters of the Applicable Federal Regulator, with respect to the
Settlement Products Program activities that Block Digital performs for HSBC
Bank. Block Digital acknowledges that it would be an "institution-affiliated
party" (as defined in 12 U.S.C. Section 1818(b)) if, in connection with the
Settlement Products Program, it knowingly or recklessly participated in a
violation of Law, or an unsafe or unsound practice, that was likely to cause
significant loss to, or have a materially adverse affect upon, HSBC Bank, and,
in such case, would be subject to administrative enforcement action by the
Applicable Federal Regulator.
Section 9.3. Audit Rights.
(a) Block Digital shall keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions and activities in relation to the Settlement Products Program, and
shall permit HSBC Bank, upon HSBC Bank's own initiative and at its sole cost, to
review that portion of the TaxCut software and that portion of the website in
which Digital Settlement Products are offered to ensure that such programs and
software comply with HSBC Bank's policies and procedures for the Settlement
Products Program and the Laws applicable to the Settlement Products Program, to
examine and make abstracts or copies from any of its books and records, to
conduct an audit and analysis of its accounts and to discuss such records and
accounts with its Representatives, all only with respect to and as such shall
relate to the Settlement Products Program or the obligations and duties of Block
Digital pursuant to this Digital Distribution Agreement and the other Program
Contracts, all at such reasonable times and as often as HSBC Bank may reasonably
desire; provided, however, that during the period commencing on January 1st and
ending on April 15th of each year of the Term of this Digital Distribution
Agreement, HSBC Bank shall use commercially reasonable efforts to limit the
exercise of such audit rights so as not to disrupt the business operations of
Block Digital during its peak season; provided further, so long as no Block
Event of Default shall have occurred and be continuing, HSBC Bank shall provide
Block Digital with reasonable prior written notice. The audit rights of HSBC
Bank hereunder shall not pertain to any information which is not part of the
Settlement Products Program.
(b) The Agents shall permit HSBC Bank's Applicable Federal Regulator
to visit the offices of Block Digital where the books and records related to the
Settlement Products Program are contained, to examine and make abstracts or
copies from any of its books and records, to conduct an audit and examination of
its records and accounts, and to discuss such records and accounts with its
Representatives, all to the fullest extent provided by Law.
Section 9.4. Training Program.
(a) HSBC Bank, at its expense, shall design, establish and maintain an
ongoing training program for Block Digital and its Representatives who engage in
Settlement Products Program activities and have direct contact with Settlement
Products Clients. HSBC Bank shall design the training program to provide Block
Digital and its Representatives with
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adequate in-depth education and training about the Digital Settlement Products,
as well as the Laws applicable to the Settlement Products Program. HSBC Bank
shall also design the training program to ensure that Block Digital and its
Representatives are adequately educated about the Digital Settlement Products,
the distinction between insured and non-insured products, and applicable Laws
(including if applicable, truth in lending, truth in savings, real estate
settlement procedures, equal credit opportunity, and fair lending Laws) that may
be applicable to Block Digital's activities related to the Settlement Products
Program.
(b) HSBC Bank shall develop and distribute written Originator Training
Materials, and Settlement Products Program policies and procedures, for use by
Block Digital. The training program may also include CD-ROM or Internet-based
interactive Settlement Products Program training materials prepared by HSBC
Bank; provided, however, the Block Companies may make non-substantive edits to
such training materials to convert such training materials into a format
compatible with their systems. HSBC Bank shall review and update the Originator
Training Materials on an annual basis (but more frequently if necessary to
reflect a Law change) to ensure that Block Digital and its Representatives
receive adequate and updated training.
(c) Any tax professional employed by Block Digital, if any, shall
receive Settlement Products Program training before engaging in Settlement
Products Program activities with direct Client contact. Any tax professional, if
any, that has previously received Settlement Products Program training shall
receive continuing Settlement Products Program training focused upon changes to
Digital Settlement Products or services, and changes in Laws applicable to the
Settlement Products Program. HSBC Bank and Block Digital shall maintain records
of the Settlement Products Program Training Materials and the training received
by individual tax professionals employed by Block Digital, and shall make such
records available for review by examiners from the Applicable Federal Regulator.
Section 9.5. Clarification. For the avoidance of doubt, the obligation of
Block Digital to assure that its activities and the activities of its
Representatives are in compliance with Law and the Instructions as provided in
the Program Contracts shall not be affected by any failure or alleged failure of
the HSBC Companies to monitor, audit or supervise the activities of Block
Digital or its Representatives as provided in the Program Contracts, it being
the intention of the parties that HSBC Bank shall not be responsible for any
failure of Block Digital to assure that its activities and the activities of its
Representatives are in compliance with Law and the Instructions as provided in
the Program Contracts.
Section 9.6. Compliance Program. HSBC Bank, at its expense, shall design,
establish and maintain a detailed compliance program to ensure adequate
monitoring, supervision and control over Block Digital and the Settlement
Products Program activities that Block Digital performs for HSBC Bank and the
Digital Settlement Products offered by HSBC Bank, in particular that portion of
the TaxCut software and that portion of the website in which Digital Settlement
Products are offered. The compliance program shall include, at a minimum, the
following features:
(a) The compliance program shall be reviewed by HSBC Bank's board of
directors and senior management not less frequently than annually.
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(b) HSBC Bank shall designate a compliance officer dedicated to the
development, implementation and management of HSBC Bank's compliance program.
The compliance officer shall have responsibility for the oversight of Block
Digital's performance of activities related to the Settlement Products Program
and the Digital Settlement Products offered by HSBC Bank.
(c) Not less frequently than annually, HSBC Bank shall conduct a
compliance risk assessment for the Settlement Products Program. HSBC Bank and
the Block Companies shall cooperate to develop a true and comprehensive
depiction of actual risks in the Settlement Products Program.
(d) Not less frequently than annually, the compliance officer shall
review the compliance program to determine if Block Digital is operating in
accordance with HSBC Bank's established policies and procedures regarding the
activities relating to the Settlement Products Program and the Digital
Settlement Products offered by HSBC Bank.
(e) HSBC Bank shall conduct an annual internal or external audit
review of the compliance program, which shall include a review and update of the
training program and the Originator Training Materials.
(f) HSBC Bank shall require the compliance officer to provide annual
written compliance and audit reports to HSBC Bank's board of directors. Such
reports shall include evidence of appropriate remedial actions taken (or to be
taken) to address any identified deficiencies in the compliance program.
(g) HSBC Bank shall develop and maintain a system for tracking and
recording consumer complaints regarding the Settlement Products Program in a
timely manner. The compliance officer shall provide an annual written report of
consumer complaints regarding the Settlement Products Program, and the
resolution of such complaints, to HSBC Bank's board of directors. Block Digital
shall use commercially reasonable efforts to track and report to HSBC Bank all
material consumer complaints related to the Settlement Products Program received
by Block Digital.
(h) HSBC Bank shall develop and maintain a review and approval process
for all Client disclosures, advertising and other promotional materials used in
the Settlement Products Program.
(i) HSBC Bank shall comply with any other requirements or conditions
that the appropriate regional office or the Washington, D.C. headquarters of the
Applicable Federal Regulator deem appropriate for HSBC Bank with regard to the
Settlement Products Program.
(j) The Block Companies may, with the consent of HSBC Bank, implement
compliance standards and practices for the Settlement Products Program that
supplement, but do not conflict, with those prescribed by HSBC Bank. Such
consent may not be unreasonably withheld.
(k) The Block Companies may, with the consent of HSBC Bank, implement
compliance standards and practices for the Settlement Products Program that
implement legal
15
stipulations, settlements and contractual agreements with third parties. Such
consent may not be unreasonably withheld.
ARTICLE X
TERM AND TERMINATION
Section 10.1. Term. The "Initial Term" of this Digital Distribution
Agreement shall commence as of July 1, 2006 and shall expire on June 30, 2011.
The Block Companies shall have the exclusive right to renew this Digital
Distribution Agreement for not more than two (2) successive one year periods
(each such one year period is referred to as a "Renewal Term"). In the event the
Block Companies elect to renew this Digital Distribution Agreement for a Renewal
Term, the Block Companies shall provide written notice to HSBC Bank not later
than ninety (90) days prior to the expiration of the Initial Term or, if the
Digital Distribution Agreement was renewed, the Renewal Term. The Initial Term
and any Renewal Term(s) are collectively referred to as the "Term".
Notwithstanding the provisions of this Section 10.1, this Digital Distribution
Agreement may be terminated prior to the expiration of the Initial Term or any
Renewal Term in accordance with the provisions of Section 10.2.
Section 10.2. Termination.
(a) This Digital Distribution Agreement may be terminated as follows:
(1) upon the mutual written agreement of all of the parties
hereto;
(2) upon the expiration or termination of the Retail Distribution
Agreement;
(3) by any Block Company in accordance with Section 18.2 of the
Retail Distribution Agreement; or
(4) by any HSBC Company in accordance with Section 19.2 of the
Retail Distribution Agreement.
(b) Any Block Company party to this Digital Distribution Agreement may
terminate this Digital Distribution Agreement pursuant to Section 11.2(a).
(c) Any HSBC Company party to this Digital Distribution Agreement may
terminate this Digital Distribution Agreement pursuant to Section 12.2(a).
Section 10.3. Effect of Termination. Termination pursuant to Section 10.2
shall not affect the rights or obligations (including any payment obligations
for which payment is due after the effective date of the termination of this
Digital Distribution Agreement) of the parties to this Digital Distribution
Agreement or any other Program Contract arising prior to the termination of this
Digital Distribution Agreement, including the obligations of the Servicer under
the Servicing Agreement.
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ARTICLE XI
DEFAULT OF HSBC COMPANIES AND REMEDIES OF BLOCK COMPANIES
Section 11.1. HSBC Events of Default. The occurrence of any one or more of
the following events for any reason whatsoever (whether voluntary or
involuntary, by operation of law or otherwise) shall constitute an event of
default with respect to any HSBC Company party hereto:
(a) such HSBC Company fails to observe or perform any covenant
applicable to it contained in this Digital Distribution Agreement (or, in the
event such covenant does not contain a Material Adverse Effect qualification, so
long as such failure could reasonably be expected to have a Material Adverse
Effect), following receipt of notice of such failure and the same shall remain
unremedied for five (5) days or more following receipt of such notice;
(b) any representation, warranty, certification or statement made by
such HSBC Company in this Digital Distribution Agreement is incorrect in any
respect (or, in the event such representation, warranty, certificate or
statement made in this Digital Distribution Agreement does not contain a
Material Adverse Effect qualification, so long as such incorrect representation,
warranty, certification or statement could reasonably be expected to have a
Material Adverse Effect); or
(c) an HSBC Event of Default occurs under the Retail Distribution
Agreement.
Section 11.2. Remedies. If any event default by an HSBC Company under
Section 11.1 has occurred and is continuing and adversely affects any Block
Company party hereto, the following actions may be taken:
(a) Termination. The Block Companies party hereto may terminate this
Digital Distribution Agreement. Such Block Companies terminating this Digital
Distribution Agreement under this Section 11.2(a) shall promptly provide written
notice to each HSBC Company party hereto. The effective date of any termination
shall be the earliest date such corresponding notice was received by any HSBC
Company party hereto.
(b) Other Rights and Remedies. Such Block Company and any other Block
Company party hereto may exercise any rights and remedies provided to it under
this Digital Distribution Agreement or at law or equity.
Section 11.3. Default Rate. If any event of default of any HSBC Company
party hereto has occurred and is continuing, and all or any portion of the
Obligations hereunder of the HSBC Companies parties hereto are outstanding, such
Obligations or any portion thereof shall bear interest at the Default Rate until
such Obligations or such portion thereof plus all interest thereon are paid in
full.
Section 11.4. Waiver. The Block Companies party hereto may waive, in
writing, any event of default under Section 11.1. Upon any such waiver of a past
event of default, such event of default shall cease to exist; provided, however,
such waiver shall not excuse or discharge any Obligations relating to or
liabilities arising from such event of default. No such waiver shall
17
extend to any subsequent or other event of default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE XII
DEFAULT OF BLOCK COMPANIES AND REMEDIES OF HSBC COMPANIES
Section 12.1. Block Events of Default. The occurrence of any one or more of
the following events for any reason whatsoever (whether voluntary or
involuntary, by operation of law or otherwise) shall constitute an event of
default with respect to any Block Company party hereto:
(a) such Block Company fails to observe or perform any covenant
applicable to it contained in this Digital Distribution Agreement (or, in the
event such covenant does not contain a Material Adverse Effect qualification, so
long as such failure could reasonably be expected to have a Material Adverse
Effect), and the same shall remain unremedied for five (5) days or more
following receipt of written notice of such failure; provided, however, that,
with respect to covenants regarding compliance with Laws, in the event such
Block Company is not complying with a Law because it has reasonably determined
that such Law is not applicable to it in its capacity as Agent based upon
federal preemption, such failure to comply will not give rise to an event of
default under this Section 12.1(a) unless and until sixty (60) days after such
Law is determined through a final non appealable order of a court of competent
jurisdiction to be applicable to such Block Company and the Block Company has
continued its failure to comply with such Law;
(b) any representation, warranty, certification or statement made by
such Block Company in or pursuant to this Digital Distribution Agreement shall
prove to have been incorrect in any respect (or, in the event such
representation, warranty, certificate or statement made in this Digital
Distribution Agreement does not contain a Material Adverse Effect qualification,
so long as such incorrect representation, warranty, certification or statement
could reasonably be expected to have a Material Adverse Effect); provided,
however, that, with respect to any representation, warranty, certification or
statement with respect to compliance with Laws, if such Block Company is not
complying with a Law because it has reasonably determined that such Law is not
applicable to it in its capacity as Agent based upon federal preemption, such
failure to comply will not give rise to an event of default under this Section
12.1(b) unless and until sixty (60) days after such Law is determined through a
final non appealable order of a court of competent jurisdiction to be applicable
to such Block Company and the Block Company has continued its failure to comply
with such Law; or
(c) a Block Event of Default occurs under the Retail Distribution
Agreement.
Section 12.2. Remedies. If any event default by a Block Company under
Section 12.1 has occurred and is continuing and adversely affects any HSBC
Company party hereto, the following actions may be taken:
(a) Termination. The HSBC Companies party hereto may terminate this
Digital Distribution Agreement. The HSBC Companies terminating this Digital
Distribution Agreement under this Section 12.2(a) shall promptly provide written
notice to each Block
18
Company party hereto. The effective date of any termination shall be the
earliest date such corresponding notice was received by any Block Company party
hereto.
(b) Other Rights and Remedies. Such HSBC Company and any other HSBC
Company party hereto may exercise any rights and remedies provided to it under
the Distribution Agreement or at law or equity.
Section 12.3. Default Rate. If any event of default of any Block Company
party hereto has occurred and is continuing, and all or any portion of the
Obligations hereunder of the Block Companies parties hereto are outstanding,
such Obligations or any portion thereof shall bear interest at the Default Rate
until such Obligations or such portion thereof plus all interest thereon are
paid in full.
Section 12.4. Waiver. The HSBC Companies party hereto may waive, in
writing, any event of default under Section 12.1 by the Block Companies. Upon
any such waiver of a past event of default, such event of default shall cease to
exist; provided, however, such waiver shall not excuse or discharge any
Obligations relating to or liabilities arising from such event of default. No
such waiver shall extend to any subsequent or other event of default or impair
any right consequent thereon except to the extent expressly so waived.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Survival.
(a) The rights and obligations of the parties hereto under Sections
5.10, 8.4, 11.3 and 12.3 of this Digital Distribution Agreement shall survive
the termination or expiration of this Digital Distribution Agreement until such
time as no obligations are due and owing thereunder.
(b) The (i) representations and warranties of the parties hereto and
(ii) the rights and obligations of the parties hereto under Sections 10.3,
11.2(b) and 12.2(b), and Article XIII of this Digital Distribution Agreement
shall survive the termination or expiration of this Digital Distribution
Agreement indefinitely.
Section 13.2. No Waivers; Remedies Cumulative. No failure or delay by any
party hereto in exercising any right, power or privilege under this Digital
Distribution Agreement shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law, by other agreement or otherwise.
Section 13.3. Notices. All notices, requests and other communications to
any party hereunder shall be provided in the manner set forth in Section 22.3 of
the Retail Distribution Agreement.
Section 13.4. Severability. In case any provision of, or obligation under,
this Digital Distribution Agreement shall be invalid, illegal or unenforceable
in any applicable jurisdiction,
19
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 13.5. Amendments and Waivers. Any provision of this Digital
Distribution Agreement may be amended or waived only if such amendment or waiver
is in writing and is signed by all of the parties hereto.
Section 13.6. Successors and Assigns. The provisions of this Digital
Distribution Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
no such party may assign or otherwise transfer any of its rights under this
Digital Distribution Agreement without the prior written consent of all parties
signatory hereto, except as otherwise provided herein.
Section 13.7. Headings. Headings and captions used in this Digital
Distribution Agreement (including all exhibits and schedules thereto) are
included herein for convenience of reference only and shall not constitute a
part of this Digital Distribution Agreement for any other purpose or be given
any substantive effect.
Section 13.8. Alternative Dispute Resolution. ANY DISPUTE BETWEEN OR AMONG
THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS DIGITAL DISTRIBUTION
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN (EXCEPT JUDICIAL ACTION FOR
SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF) SHALL BE RESOLVED AMONG THE PARTIES
TO SUCH DISPUTE BY NEGOTIATIONS, MEDIATION OR ARBITRATION IN ACCORDANCE WITH THE
PROVISIONS OF ARTICLE XXI OF THE RETAIL DISTRIBUTION AGREEMENT, WHICH ARE
INCORPORATED HEREIN BY REFERENCE.
Section 13.9. Governing Law; Submission To Jurisdiction. THIS DIGITAL
DISTRIBUTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF MISSOURI. WITHOUT LIMITING THE EFFECT OF SECTION
13.8 HEREOF AND ARTICLE XXI OF THE RETAIL DISTRIBUTION AGREEMENT, EACH OF THE
PARTIES HERETO (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND/OR
STATE COURTS SITTING IN ST. LOUIS, MISSOURI FOR PURPOSES OF ALL LEGAL
PROCEEDINGS FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF PERMITTED BY SECTION
21.12 OF THE RETAIL DISTRIBUTION AGREEMENT, (B) IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM, (C) IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN SUCH
PROCEEDING IN THE MANNER PROVIDED FOR NOTICES IN SECTION 13.3, AND (D) AGREES
THAT NOTHING IN THIS DIGITAL DISTRIBUTION AGREEMENT WILL AFFECT THE RIGHT OF ANY
20
PARTY TO THIS DIGITAL DISTRIBUTION AGREEMENT TO SERVE PROCESS IN ANY SUCH
PROCEEDING IN ANY OTHER MANNER PERMITTED BY LAW.
Section 13.10. Waiver of Jury Trial. WITHOUT LIMITING THE EFFECT OF SECTION
13.8, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS DIGITAL DISTRIBUTION
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.11. Counterparts. This Digital Distribution Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Digital Distribution Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto.
Section 13.12. Entire Agreement. This Digital Distribution Agreement and
the other Program Contracts constitute the entire agreement and understanding
among the parties hereto, and supersede and extinguish any and all prior
agreements and understandings, oral or written relating to the operation of the
Settlement Products Program on and after July 1, 2006. For the avoidance of
doubt, (i) this Digital Distribution Agreement and the other Program Contracts
shall govern the operation of the Settlement Products Program on and after July
1, 2006, (ii) the Prior Program Agreements shall continue to govern the
operation of the current program until their expiration on June 30, 2006 in
accordance with their terms, and (iii) nothing in this Digital Distribution
Agreement or the other Program Contracts shall affect the rights and obligations
of the parties to the Prior Program Agreements, whenever arising, under such
Prior Program Agreements, which remain valid and enforceable in accordance with
their terms.
Section 13.13. Reinstatement. This Digital Distribution Agreement shall
remain in full force and effect and continue to be effective should any petition
be filed by or against any party hereto for liquidation or reorganization,
should any party hereto become insolvent or make an assignment for the benefit
of any creditor or creditors or should a receiver or trustee be appointed for
all or any significant part of any party's assets or properties, and shall
continue to be effective or to be reinstated, as the case may be, if at any time
payment and performance of the obligations hereunder, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of such obligations, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the obligations hereunder
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
Section 13.14. Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Digital Distribution Agreement
with its counsel.
Section 13.15. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Digital Distribution Agreement.
In the event any ambiguity or question of intent or interpretation arises, this
Digital Distribution Agreement shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise
21
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Digital Distribution Agreement.
Section 13.16. Conflict of Terms. Except as otherwise provided in this
Digital Distribution Agreement or any of the other Program Contracts by specific
reference to the applicable provisions of this Digital Distribution Agreement,
if any provision contained in this Digital Distribution Agreement conflicts with
any provision in any of the other Program Contracts, other than the Retail
Distribution Agreement, the provision contained in this Digital Distribution
Agreement shall govern and control. If there is a conflict between this Digital
Distribution Agreement and the Retail Distribution Agreement, then the Retail
Distribution Agreement shall control.
Section 13.17. Further Execution. Each party hereto shall execute any and
all documents as are necessary or desirable to consummate the transactions
contemplated hereby.
Section 13.18. Expenses. Except as otherwise provided herein or in any
Program Contract, each party hereto shall pay its own expenses, including the
expenses of its own counsel and its own accountants, in connection with the
consummation of the transactions contemplated by this Digital Distribution
Agreement.
Section 13.19. No Implied Relationship; No Third Party Rights.
Notwithstanding any provision herein to the contrary:
(a) This Digital Distribution Agreement shall not be construed to
establish a partnership or joint venture between the parties hereto.
(b) All personnel employed or otherwise engaged by any party hereto to
perform the obligations and duties of such party hereunder shall not be deemed
to be employees of any other party hereto. In addition, the party employing or
otherwise engaging such employees, shall at all times be responsible for the
compensation of, and payment of applicable state and federal income taxes with
respect to, any personnel employed by such party to perform any services
hereunder.
Section 13.20. No Third Party Beneficiaries. This Digital Distribution
Agreement is for the sole benefit of the parties hereto and their permitted
successors and assigns and nothing in this Digital Distribution Agreement,
express or implied, is intended to or shall confer upon any other person any
legal or equitable right, benefit or remedy, of any nature whatsoever under or
by reason of this Digital Distribution Agreement.
Section 13.21. Force Majeure. No party hereto shall be liable for failure
to satisfy or delays in the satisfaction of its Obligations, except failure or
delay with respect to its payment Obligations, as a result of a Force Majeure
Event.
Section 13.22. Limitation of Scope of Representations and Warranties and
Other Disclosures. The representations, warranties and other disclosures set
forth by each party hereto are only made for the benefit of the parties hereto
and the purpose of the transactions contemplated hereby and are not intended for
use by any person with respect to any acquisition or disposition of any security
of any party hereto.
22
THIS DIGITAL DISTRIBUTION AGREEMENT CONTAINS A BINDING ARBITRATION
PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this HSBC Digital
Settlement Products Distribution Agreement to be executed by their respective
duly authorized officers as of the date set forth above.
HSBC BANK USA, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Kathleen R. Whelehan
------------------------------------
Name: Kathleen R. Whelehan
Title: EVP
HSBC TAXPAYER FINANCIAL SERVICES INC.,
a Delaware corporation
By: /s/ Paul J. Creatura
------------------------------------
Name: Paul J. Creatura
Title: CEO
H&R BLOCK SERVICES, INC,
a Missouri corporation
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
H&R BLOCK DIGITAL TAX SOLUTIONS, LLC,
a Delaware limited liability company
By: /s/ Betsy L. Stephens
------------------------------------
Name: Betsy L. Stephens
Title: Sr. Vice President
SCHEDULE 2.3(A)(1)
ERAC PRODUCT PROCEDURES SCHEDULE
[SEE ATTACHED]
[***]
SCHEDULE 2.3(A)(2)
CLASSIC ERAL PRODUCT PROCEDURES SCHEDULE
[SEE ATTACHED]
[***]
SCHEDULE 2.3(A)(3)
DENIED CLASSIC ERAL PRODUCT PROCEDURES SCHEDULE
[SEE ATTACHED]
[***]
SCHEDULE 5.1
BLOCK DIGITAL'S ROLES AND RESPONSIBILITIES
ROLES AND RESPONSIBILITIES OF BLOCK DIGITAL:
- Electronically obtaining information from each Applicant
- Electronically complete IRS Form No. 8453
- Coordination of eRAL/eRAC products origination
- Electronically providing copy of electronically signed application,
loan agreement and disclosures to Client
- Electronic delivery of necessary product disclosures
- Maintenance of necessary equipment
- Hiring and training of personnel
- Following operating procedures for issuing eRALs
- Offering of eRALs and eRACs to tax Clients via the Block Digital
Channel
- Developing the software to offer Digital Settlement Products
SCHEDULE 7.8
RAC FEE FOR BLOCK DIGITAL CHANNEL
[***]
SCHEDULE 7.9
ROLES AND RESPONSIBILITIES OF HSBC BANK
- - Pre-season application screening
- - Client account management
- - Risk management and underwriting
- - Data management/mining
- - Compliance monitoring
- - Reporting
- - Fulfillment
- - Reconciliation
- - Eligibility criteria
- - Exception processing
- - Disbursement processing
- - Customer service
- - Adverse action letter processing
- - HRB fee payment processing and reconciliation
- - IRS and Client payment processing
- - Strategic partner interfaces
- - Application processing
- - Funding process and reconciliation
- - Fee structure
- - Application of payments
- - Credit bureau processing
- - Debt processing
- - Fraud prevention and procedures
- - Collections
- - Check clearing and processing
- - Prior check/ACH fulfillment program support
- - Delinquency reporting / management
- - Issue replacement checks as necessary
- - Online eRAL, TaxCut, eRAC and related support
- - ERO loading of system
- - Develop Client application and agreements